‘Tort on an information network’ in TM infringement

According to article 25 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China, 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.

Therefore, for a tort that occurs on an information network, the trademark proprietors usually choose the court located in “the place of domicile of the victim” to bring a lawsuit.

Differing opinions

However, in judicial practice, courts of different places have different opinions for the definition of “tort on an information network”.

In one typical trademark infringement and unfair competition case, Foshan Nanhaibeihao Biotechnology Co Ltd v Tianjin Meizhilu Cosmetics Co Ltd, the court of first instance (Foshan Chancheng Court) held that online sales of counterfeit products does not constitute “tort on an information network” and thus the trademark proprietor could not choose the place of domicile of the victim as the competent court.

The Foshan Chancheng Court transferred this case to the First Intermediate People’s Court of Tianjin. Since the Tianjin Court took the opposite view, it requested the Supreme People’s Court (SPC) to deliver the final decision over the jurisdiction matter.

Li Mao is a partner at Boss & Young