China: Judicial Practice In Online IP Disputes

Last Updated: 23 June 2015
Article by Celia Li

The Internet has transformed and continues to transform traditional business practices in China. When China's biggest online business service supplier, Alibaba Group, was listed on the New York Stock Exchange in September 2014, its market value topped 0 billion on the first day. However, this story has two sides. In January 2015 the China State Administration of Industry and Commerce (SAIC) published the results of its monitoring of online trading. Once again, it was Alibaba – more specifically, its subsidiary which came top. However, this time it was because of the high number of counterfeit good being sold through the platform.

The number of online IP disputes appearing before the courts is also continually increasing. Judicial practice is being challenged in several areas – in particular, online trademark infringement and various unfair competition and domain name disputes between competitors in China's rapidly developing markets.

Legal framework

The following laws and regulations govern online IP disputes in China:

  • the Unfair Competition Law 1993;
  • the Regulations on the Protection of Computer Software 2001;
  • the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws to the Trial of Civil Dispute Cases over Domain Names of Computer Network 2001;
  • the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving Copyright 2002;
  • the Administrative Measures for the Internet Domain Names of China 2004;
  • the Regulations on the Protection of Computer Software and Network Copyright Information Network Transmission Right 2006;
  • the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving Unfair Competition 2007;
  • the Copyright Law 2010;
  • the Regulations on the Protection of Rights to Information Network Communication 2013;
  • the Trademark Law 2013; and
  • the Copyright Law Enforcement Regulations 2013.

Domain name disputes

A domain name registration will qualify as a trademark infringement in the following circumstances:

  • A third party has registered a domain name which is the same or similar to another party's registered trademark;
  • The domain name at issue is used commercially to designate goods or services; and
  • This use will likely cause confusion among the relevant public as to the source of the goods or services.

Identifying infringers

It is common for the owner of a website, the actual operator and the point of contact to be different legal entities, making it difficult to identify the infringer.

Rights holders considering action should first search website recordal information and then analyse this thoroughly, using professional investigation tools. In addition, useful information can be retrieved from the judicial judgment data system. If this still does not yield results, rights holders should consider filing suit against all suspected parties. This should not result in any negative consequences for the rights holder, while the defendant's evidence during litigation together with the opportunity to cross-examine should reveal the real infringer.

Internet service providers

Article 23 of the Regulations on the Protection of Rights to Information Network Communication establishes that where an internet service provider (ISP) provides any searching or linking service and removes links to any infringing work, performance or audiovisual product after receiving notice of this from the rights holder, it shall not be held liable for compensation. However, if the ISP is aware or should have known that works, performances or audiovisual products to which it provided hosting or linking service infringe copyright, it shall assume liability for joint infringement.

ISPs can be divided into content providers and storage space or link providers. The former are directly responsible for any infringing content based on their duty of care, while the latter (eg, platforms such as and ISPs can be divided into content providers and storage space or link providers. The former are directly responsible for any infringing content based on their duty of care, while the latter (eg, platforms such as and merely have an obligation with regard to infringement. Storage space or link suppliers can be held jointly liable for copyright infringement only when they fail to delete infringing content within a reasonable period of receiving a cease and desist letter. In practice, the ISP's level of responsibility may influence the choice of jurisdiction, which is obviously key to any lawsuit. Rights holders should therefore determine which category the ISP in question falls into before initiating any legal action for potential infringement or counterfeiting.


Given the lack of boundaries in cyberspace, the issue of jurisdiction in online IP disputes is well worth exploring. According to the Supreme Court, jurisdiction should be located where the infringement took place – this can include the place where the infringement was committed physically, the place where the infringing consequence took place or the place where the defendant is domiciled. If it is impossible to confirm any of these – or if the infringement took place outside China – then the location of the computer terminals or other facility containing infringing content can serve to determine jurisdiction.

In *Rui De (Group) Company (Ruide) v Dong Fang Information Service Limited (Dongfang)* Ruide filed suit before the Beijing Haidian District Court, claiming that Dongfang copied the overall typesetting, colours, patterns, column sets, column titles, and programs of its website, which damaged its reputation and led to a fall in web traffic and to it lost business.

Dongfang opposed the Beijing City Haidian District Court's jurisdiction, but its opposition was refused by the first and second-instance courts. Donfang argued that the Intermediate Court of Sichuan Province Yibin City, where it was domiciled, should have jurisdiction. It argued against jurisdiction being where Ruide's network server or computer terminals were located because the infringement did not take place when users visited Ruide's website. Technically speaking, when a user visits a webpage, the page is downloaded to his or her computer by digital transmission technology through its remote computer or server, and when temporarily stored on the random access memory of the user's computer before being displayed on the browser. Thus, the site is visited or copied only when the terminal computer or network server is entered. In this case, only Dongfang had entered into Ruide's terminal computer or network server in order to copy its website, which meant that the Beijing City Haidian District Court had jurisdiction in this case.

According to Article 5 of the Interpretation of the Supreme Court on Several Issues concerning the Application of Law in the Trial of Civil Dispute Cases Involving Copyright, with regard to a joint action against multiple defendants where the infringement was committed in several different places, the plaintiff may choose the place where the infringement committed by any one of these defendants occurred as jurisdiction. If the action was filed against only one of the defendants, the court in the place where that defendant committed the infringement shall have jurisdiction.

Preliminary injunctions

Factors that will influence a court when it comes to issuing preliminary injunctions – including pre-filing litigation and pre-hearing injunctions – include the need for the injunction, any evidence that irreparable damage will occur unless an injunction is issued and the balance of interest between the application and the public.

In *Letv v Funshion TV* (2014), which involved a dispute over information communication, Letv applied for a preliminary injunction before the hearing. Letv enjoyed rights to information network communication, as well as broadcasting rights, over the programme *I am a Singer*. Funshion TV re-broadcast the programme without authorisation, prompting Letv to file suit.

After filing suit, Letv applied for a preliminary injunction and lodged security with the court. Letv claimed that if Funshion's behaviour were not prohibited immediately, it would cause serious damage to Letv's advertising revenues, considering the timeliness of the programme. The Beijing City Haidian District People's court issued a preliminary injunction, ruling that Funshion TV should cease broadcasting the programme immediately in view of the timeliness of the programme, the possible damage to Letv and the fact that Funshion TV could not demonstrate that it had any right whatsoever to broadcast the programme.


There has been a sharp rise in online IP disputes, as more and more companies do business on the Internet. If disputes do arise, it is crucial that companies confirm the cause of action and choose a favourable jurisdiction – which is mostly related to correctly identifying the defendant(s) – before commencing legal action. Preliminary injunctions are an effective way to avoid irreparable harm and courts appear increasingly willing to grant these. Further, whereas the statutory limit of compensation for copyright infringement is set at Rmb500,000, the limit of statutory compensation for trademark infringement is set much higher, at Rmb3 million, according to the Trademark Law. Compensation awards in cases involving trademark infringement are therefore usually much higher than those in cases involving only copyright infringement and unfair competition. Given this, it is highly recommended that IP disputes be filed on the basis of trademark infringement where at all possible.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions