Yin Siyuan Assistant Judge of Wuhan Intellectual Property Tribunal

Deng Xutao Assistant Judge of Wuhan Intellectual Property Tribunal

 

Regarding the issue of jurisdiction of intellectual property infringement dispute cases, the Civil Procedure Law of the People's Republic of China (referred to as Civil Procedure Law hereinafter) and the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China (referred to as Interpretation of the Civil Procedure Law hereinafter) have made a lot of regulations. As a result of the complicated regulations, there are many specific application issues in intellectual property infringement dispute cases in judicial practice. Article 25 of the Interpretation of the Civil Procedure Law stipulates the jurisdiction of intellectual property infringement cases under the Internet environment. Since the promulgation of the Interpretation, there have been many disputes, and the relevant determinations in judicial practice are not uniform. This article aims to sort out and analyze the jurisdiction issues of Internet intellectual property infringement cases to expound the author's understanding of how Article 25 of the Interpretation specifically applies.

 

 

The Interpretation can be considered as the guiding norms formulated by the Supreme People's Court for the application of the Civil Procedural Law by various courts in judicial practice and is the direct basis for the people's courts to adjudicate cases. Regarding jurisdiction over infringement cases, Article 28 of the Civil Procedure Law provides general provisions. Article 24¹ of the Interpretation of the Civil Procedure Law interprets the "place where the tort occurs" in Article 28 of the Civil Procedure Law as including the place where a tort is committed and the place where the result of a tort occurs. Article 25² further refines the infringement of information network infringements. This is a further detailed explanation for the jurisdiction of infringements following the limitation of the "information network" in Article 24.

 

However, the provisions of Article 25 of the Interpretation of the Civil Procedure Law on "the place where the result of a tort occurs shall include the place of domicile of the victim" have become a disputed point in the specific application, and have significantly influenced the traditional jurisdiction principles in the jurisdiction of intellectual property infringement cases, which is mainly manifested in the following two aspects:

 

First, in the cases of intellectual property rights infringement, the victim is often the plaintiff of the case. Article 25 of the Interpretation essentially establishes the principle of jurisdiction of the plaintiff's domicile in the cases involving information network infringement.

 

Second, in the Internet era, there are various manifestations of IP infringements involving information networks, and the types of infringements are becoming more and more complex. If the infringements of information networks are not defined and the Interpretation is applied without exception, Article 25 will fundamentally change the pattern of being governed by the place where a tort is committed or the place where the defendant resides.

 

 

Regarding IPR infringement dispute cases, in addition to the Civil Procedure Law and its Interpretation, the Supreme Court has also formulated a number of special regulations, such as: Article 15 of Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in Hearing Civil Dispute Cases Involving Infringement of the Right of Dissemination on Information Networks³, Article 6 of Interpretation of the Supreme People's Court Concerning the Application of Laws in the Trial of Cases of Civil Disputes Arising from Trademarks⁴, Article 5 of Several Provisions of the Supreme People's Court on Issues concerning the Application of Law in the Trial of Cases Involving Patent Disputes⁵, Article 4 of Interpretation of the Supreme People's Court Concerning the Application of Laws in the Trial of Civil Disputes over Copyright⁶. The above are the "special" provisions of the Supreme Court to guide judicial practice, and none of them specifically include the place of domicile of the victim in the place where a tort is committed.

 

Compared with the above "special" provisions, the Interpretation has made a breakthrough in the content of the regulations, and its promulgation and implementation time is also after the above regulations and thus is a "new" regulation. However, the above-mentioned judicial interpretations and regulations were both formulated by the Supreme Court, and they are both currently valid and have the same effect. In fact, there is no distinction between new and old, special and ordinary. So, how should the above provisions and Article 25 of the Interpretation of the Civil Procedure Law be applied in practice?

 

 

In IPR infringement cases, there are two views on how to apply Article 25 of the Interpretation: One view holds that the provisions of Article 25 of the Interpretation are applicable as long as the cases concerning intellectual property rights infringements involving information networks (including infringement of trademark rights, patent rights and unfair competition behavior) , and the domicile of the victim can be used as the jurisdictional connection point; another view is to interpret the "information network infringement" of Article 25 of the Interpretation as the act of using information networks to directly infringe the rights of communication and personal rights of information networks, thereby excluding the application of Article 25 of the Interpretation to all intellectual property rights infringements.

 

The author believes that Article 25 of the Interpretation should be understood and applied after considering the relevant provisions as a whole, rather than merely applying the relevant concepts involved in the Article. Regarding the definition of "information network infringement", it should be analyzed from the aspects of rights and elements. At the same time, the understanding of "the place where the result of a tort occurs" should also be modified from misunderstanding.

 

(1) Perspective of rights

 

From the perspective of rights, the definition of "information network infringement" must first clarify the scope of "rights" in infringements. Legal rights can be divided into property rights and personal rights due to different natures of interests. The nature of rights is different, so are the jurisdictional provisions for torts. In the information network environment, for people who use information networks to infringe personal rights and interests, Article 2 of the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases involving Civil Disputes over Infringements upon Personal Rights and Interests through Information Networks can be applied, which stipulates: "A lawsuit filed against the infringement upon personal rights and interests through information networks shall be subject to the jurisdiction of the people's court at the place where the infringement is conducted or the defendant is resided. The place where the infringement is conducted includes the place of the computer and other terminal equipment through which the alleged infringement is conducted, and the place where the infringement occurs includes the domicile of the infringed party." As can be seen from the provisions of this article, its statement about "the place where the infringement occurs includes the domicile of the infringed party" is consistent with the provisions of Article 25 of the Interpretation. Therefore, if the information network infringes upon personal rights and interests, of course, Article 25 of the Interpretation applies.

 

At the same time, Article 25 of the Interpretation also establishes the connection point for the jurisdiction of the domicile of the infringed party. For IPR infringements (infringement of copyrights, trademarks, patents, and unfair competition), it is necessary to refine the types of rights to clarify the scope of application. Where personal rights are involved in intellectual property rights, Article 25 of the Interpretation shall apply. For example, in copyright infringement cases, Article 9 of the Copyright Law of the People's Republic of China specifies the personal and property rights owned by copyright owners. For the use of information networks to infringe personal rights in copyright, the provisions of Article 25 of the Interpretation shall apply; for the use of information networks in unfair competition to damage the business reputation and reputation of competitors and other acts that infringe the personal rights of competitors or operators, Article 25 of the Interpretation shall also apply.

 

Therefore, regardless of the type of infringement (including cases of intellectual property infringement disputes such as copyright, trademark, patent, unfair competition, etc.), Article 25 of the Interpretation should be applicable to any information network infringements that aim at personal rights and interests. For infringements of copyrights, trademarks, patents and unfair competition that only aim at sales on the online platforms or promotion for sales, they are not in the category of infringement of personal rights or personality rights, and Article 25 of the Interpretation shall not be applied in the above cases in an unrestricted and expanded manner.

 

(2) The perspective of information network elements

 

From the analysis of information network elements, it is necessary to clarify whether the information network is an element of rights or an element of infringement means. In Article 2 of the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases involving Civil Disputes over Infringements upon Personal Rights and Interests through Information Networks mentions, for "a  lawsuit filed against the infringement upon personal rights and interests through information networks," "Information Network" as a means of infringement refers to using information networks to infringe personal rights and interests. The infringement of personal rights and interests based on information network means shall be under the jurisdiction of the people's court in the place of infringement or the domicile of the defendant, which is consistent with Article 28 of the Civil Procedure Law. As can be seen from the statement of "the place where a tort is committed includes……, and the place where the result of a tort occurs includes……", it is also consistent with the Article 24 of the Interpretation except that it clarifies that the location of the computer and other terminal equipment that committed the infringed act is the place where the infringing act was carried out, and the place where the infringed person resides is the place where the infringing result occurred. The provision of " the place where the result of a tort occurs shall include the place of domicile of the victim" is consistent with Article 25 of the Interpretation. From this point of view, the provisions of Article 25 of the Interpretation shall also apply to the use of information networks as a means of infringing personal rights and interests.

 

At the same time, Article 15 of the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in Hearing Civil Dispute Cases Involving Infringement of the Right of Dissemination on Information Networks provides: "Civil disputes infringing on the right to disseminate information on the Internet are under the jurisdiction of the people's court in the place where the infringement occurred or the defendant's residence. The place of infringement includes the location of the network server, computer terminal and other equipment that committed the alleged infringement. Where the place of infringement and the defendant's domicile is difficult to determine or are abroad, the location of the computer terminal and other equipment where the plaintiff found the infringing content may be regarded as the place of infringement." According to this provision, "information network" is an element of right, that is, the right of communication through information network, which is a legal right. This right refers only to the property rights enjoyed by the copyright owner, as provided in Article 10, paragraph 12 of the Copyright Law. The provision "Civil disputes infringing on the right to disseminate information on the Internet are under the jurisdiction of the people's court in the place where the infringement occurred or the defendant's residence" in Article 15 of the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in Hearing Civil Dispute Cases Involving Infringement of the Right of Dissemination on Information Networks is consistent with Article 28 of the Civil Procedure Law, but "the location of the computer terminal and other equipment where the plaintiff found the infringing content can be regarded as the place of infringement" is different from Article 2 of the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases involving Civil Disputes over Infringements upon Personal Rights and Interests through Information Networks in that the premise "the place of infringement and the defendant's domicile are difficult to determine or abroad" is added, indicating that when the right of communication through information network is the only infringing object, it should be distinguished from the damage to personal rights, and the Article 25 of the Interpretation should not be applied unconditionally.

 

(3) Substantive judgment standards

 

In practice, a substantive judgment should be made as to where the infringement result occurred. There is often a misunderstanding in judicial practice as to the place where the infringement result occurs necessarily including the domicile of the victim. This misunderstanding is manifested in the understanding of Article 25 of the Interpretation as being only based on whether the tort involves the information network. It is believed that as long as the information network is involved, the domicile of the infringed person can be directly determined for jurisdiction based on the place where the infringement result occurred.

 

In fact, the infringement result must adhere to the substantive judgment standard. Similarly, taking the sale of products infringing patent rights and registered trademark exclusive rights in the network environment as an example, the network environment is only an occasion where infringement (such as sales, promised sales) is carried out, and the place where the infringement result occurs shall not be extended to the place where the victim is domiciled just because the infringement act takes place in an occasion related with the network. In practice, according to Article 20 of the Interpretation, "Sales contract concluded by information network, and the subject delivered through the information network, the place of the buyer's domicile shall be the place of performance; if the subject is delivered by other means, the place of receipt shall be the place of performance", and for the products purchased through the Internet that infringe patent rights and trademark rights, the place of receipt shall be under jurisdiction. This provision is essentially a jurisdictional rule for disputes over sales and purchase contracts under information network conditions. Unlike the nature of intellectual property rights infringement cases, it is obviously not applicable to the jurisdiction of intellectual property rights infringement cases under the information network environment; otherwise, the place of receipt where the infringed party has performed the preservation of evidence can also be understood as the place where the contract is performed to be selected as the jurisdictional contact point. Therefore, the selection of the jurisdiction of the infringed person's domicile in Article 25 of the Interpretation is essentially different from the selected place of receipt of the plaintiff's location in Article 20 of the Interpretation.

 

In the case of unfair competition disputes on the Internet, such as commercial defamation disputes and false propaganda disputes involving the Internet, the infringer uses the Internet to publish information that infringes the legal rights of others or promotion links that are not related to the victim. It should be considered that both the means of infringement and the results of infringement occurred directly in the network environment, Article 25 of the Interpretation can be applied, and the place of the victim's domicile can be regarded as the connection point of jurisdiction as the place where the infringement result occurred.

 

Based on the above-mentioned Civil Procedure Law and the  Interpretation, it can be seen that in practice, if it is considered that as long as the infringed act and the network are involved, Article 25 of the Interpretation shall apply, then it must be contrary to the judicial interpretation regulations promulgated by the Supreme Court for the trial of special cases. If a limited interpretation of information network infringements is considered to refer only to acts that directly infringe the right of information network communication and personal rights, then Article 25 of the Interpretation is not necessary because the Supreme Court has specifically regulated the jurisdiction over cases of violations of the right to disseminate information and personal rights under the network environment.

 

The author believes that in the case of Internet intellectual property rights infringement cases, when applying Article 25 of the Interpretation, "information network tort" should be understood as referring to the acts of directly infringing the personal rights and personality rights of others by using the information network, performing infringements through information network and the result of the infringement occurring directly in the network. In practice, a large number of cases of infringement of information network communication rights should be governed by Article 15 of the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in Hearing Civil Dispute Cases Involving Infringement of the Right of Dissemination on Information Networks, rather than categorized in Article 25 of the Interpretation.

 

 

 

¹Article 24 As mentioned in Article 28 of the Civil Procedure Law, “place where the tort occurs” includes the place where a tort is committed and the place where the result of a tort occurs.

² Article 25 The place where a tort is committed on an information network shall include the place where the computer and other pieces of information equipment used to commit the alleged tort are located, and the place where the result of a tort occurs shall include the place of domicile of the victim.

³ “Civil disputes infringing on the right to disseminate information on the Internet are under the jurisdiction of the people ’s court in the place where the infringement occurred or the defendant ’s residence. The place of infringement includes the location of the network server, computer terminal and other equipment that committed the alleged infringement. Where the place of infringement and the defendant ’s domicile are difficult to determine or are abroad, the location of the computer terminal and other equipment where the plaintiff found the infringing content may be regarded as the place of infringement.”

⁴ “Civil lawsuits filed for violations of the exclusive right to use registered trademarks shall be under the jurisdiction of the people ’s courts where the infringements are carried out, where the infringing commodities are stored or where the seizures are held, and the defendant ’s domicile is provided for in Articles 13 and 52 of the Trademark Law. The storage place of the infringing goods specified in the preceding paragraph refers to the place where a large amount or frequent storage or concealment of the infringing goods; the seizure place refers to the place where the customs, industry and commerce and other administrative agencies seal and seize the infringing goods according to law.”

⁵ "The lawsuit brought by the infringement of patent rights shall be under the jurisdiction of the people ’s court in the place of infringement or the residence of the defendant. The place of infringement shall include: the manufacture, use, promised sale, sale, import, etc. of the product infringed upon the patent right infringement of invention or utility model The place of conduct of the act; the place of conduct of the use of the patent method, the place of conduct of the use, promised sale, sale, import, etc. of the product directly obtained in accordance with the patent method; the manufacture, promised sale, sale, import, etc. of the design patented product The place where the act was carried out; the place where the act of counterfeiting someone else ’s patent was carried out. The place where the infringement result of the above infringement occurred. "

⁶ "Civil lawsuits brought about due to copyright infringements shall be under the jurisdiction of the people's courts where the infringements are carried out, where the infringing copies are stored, where the seizures are held, and where the defendant's domicile is located. The storage place of the infringing copy specified in the paragraph refers to the place where a large amount or operational storage or hiding of the infringing copy; the seizure place refers to the place where the customs, copyright, industry and commerce and other administrative organs seize and seize the infringing copy. "