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• W1661873859 abstract "This paper aims to discuss whether or not there is any problem in the current treatment of the notice and takedown system of the Japanese online marketplace operators and, if any, to make a suggestion as to how to resolve such problem. While online marketplaces are socially and economically useful, their services may be misused by counterfeiters to offer the sales of counterfeits. In considering the scope of liability imposed on online marketplace operators for the sales of counterfeit goods on their marketplaces and establishing appropriate standards for a notice and takedown system, the following stakeholders should be taken into consideration: trademark right holders, online marketplace operators, sellers and consumers. Especially, the interests of sellers dealing with genuine goods tend to be disregarded because they are in a weak position.In Japan, there is no statutory law that specifically provides for requirements for imposing liability on internet service providers for intellectual property infringement by users of their services on the internet. Therefore, the circumstances under which arises liability of an online marketplace operator for trademark infringement by users of its service is determined by interpretation of the Trademark Act and the tort related provisions of the Civil Code. However, the Provider Liability Limitation Act provides for safe harbour for internet service providers. In Chupa Chups case, the Intellectual Property High Court explicitly held that an online marketplace operator will be liable for trademark infringement by its user of the service under certain conditions if the operator fails to delete the contents within a reasonable period after it was advised by the right holder or any other third party.Under such circumstances, the Japanese major online marketplace operators have introduced notice and takedown systems pursuant to the guideline prepared by the organization which consists of major online marketplace operators, associations of right holders and other members. It is often said that such self-regulations are currently successful in reducing contents infringing brand owners’ rights in online marketplaces. However, the current notice and takedown system lacks opposition procedures which may be invoked by the seller the listing of which was deleted improperly. Many online marketplace operators insert into the terms and conditions of their service a provision exempting the online marketplace operator from liability for deleting the contents which the operator considers that infringe any other party’s right. In addition, under the guideline, the right holder requesting the deletion of certain contents must submit to the operator the documents proving its allegation and that the operator must decide whether or not there exists the alleged infringement, which imposes heavy burdens on online marketplace operators lacking financial or human resources.In the EU, while E-Commerce Directive provides for safe harbour for internet service providers for the purpose of development of e-commerce, Enforcement Directive and InfoSoc Directive allow right holders to obtain injunctive relief for the purpose of protection of intellectual property rights. It seems that the CJEU seeks a way to restrict the scope of the exemption of the liability of internet service providers and to require internet service providers to take measures to prevent future infringement as well as the notice and takedown system. It is noteworthy that the court tries to limit the contents of the measures to the extent that would not jeopardize the business of internet service providers. In the practice, self-regulations such as Memorandum of Understanding with respect to the sale of counterfeit goods have been developed. In the U.S., there is no statutory provision explicitly imposing liability on parties other than direct infringers of trademarks or exempting such liability under certain conditions. Instead, case law concerning secondary liability of intermediaries for trademark infringements has been developed based upon the common law of torts. Although the safe harbor provisions of the DMCA are applicable only to copyright infringement, the experience of the DMCA notice and takedown procedures, which give the alleged infringer an opportunity to file a counter notice, would be useful for the improvement of the existing notice and takedown system of the Japanese online marketplaces.In my opinion, a seller registering its offer of genuine goods in an online marketplace must be protected from improper deletion and be given an opportunity to restore the contents even if both the right holder requesting the deletion and the online marketplace operator exercised reasonable cares in making the request or deleting the contents. Although the protection of trademark rights is important, the interests of sellers in selling genuine goods in online marketplaces must not be unconditionally limited by trademark rights. As sellers are in a weak bargaining position against well-recognized online marketplace operators, such seller must be protected from improper deletion, despite of the provision of the terms and conditions of the online marketplace service exempting the operator from the liability for deleting contents.It is necessary to ensure that a seller the contents of which were deleted may invoke certain opposition procedures to restore the deleted contents. The assessment by the online marketplace operator of the existence of the alleged infringement is not sufficient for protection of the seller because the operator has different interests from the seller and might lack expertise in distinction between the genuine goods and the counterfeit goods or the trademark law. In addition, under the current system, there is no measures to restore the contents available to the seller except for negotiation with the operator or the right holder for voluntary restoration. For considering the contents of the opposition procedures to be introduced into the Japanese system, the experience of the DMCA notice and takedown procedures would be helpful because the DMCA succeeded in reducing illegal contents on the internet to some extent, while it gives the alleged infringer the contents of which were deleted an opportunity to file a counter notice. However, some modifications would be necessary.As to the burden imposed on online marketplace operators in the notice and takedown system, it is not appropriate to require online marketplace operators to verify the respective allegations of the right holders because they do not always have a sufficient ability to make a precise decision on the existence of the alleged infringement. With this regard, it is noteworthy that the German Supreme Court held in that it cannot be expected that the host provider employ well-trained lawyers. Furthermore, the approach of the MoU would be of some help in that it seeks a good balance between effective and prompt deletion of illegal contents and prevention of abuse of the system without imposing too much burdens on online marketplace operators in the light of their abilities." @default.
• W1661873859 created "2016-06-24" @default.
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• W1661873859 date "2014-01-01" @default.
• W1661873859 modified "2023-09-25" @default.
• W1661873859 title "Suggestions for Improvement of Notice and Takedown System of Japanese Online Marketplaces" @default.
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