General

On July 20, the General Administration of Customs announced a number of typical cases of infringement of intellectual property rights, involving key channels such as freight, cross-border e-commerce, and postal delivery. The General Administration of Customs stated that in these cases, there were both the protection of intellectual property rights under the traditional trade model and the crackdown on the "fragmented" infringements of emerging business formats.

According to a report by Shenzhen Customs in July, during inspection of a batch of 8,920 cross-border e-commerce export mobile phones, it was found that a batch of mobile phones using the "NOKIA" logo was confirmed to infringe Nokia's exclusive right to use the "NOKIA" trademark.

Cross-border e-commerce, as an emerging foreign trade format, has become an important force in stabilizing foreign trade during the epidemic. According to preliminary customs statistics, in the first half of 2021, my country's cross-border e-commerce exports were 603.6 billion yuan, an increase of 44.1%; imports were 283.1 billion yuan, an increase of 4.6%, and the growth rate of exports was much higher than that of imports. Accompanying this hot market are the customs' severe crackdowns on cross-border e-commerce intellectual property rights infringement, and the central government's regulatory policies on cross-border e-commerce. The National Standing Committee held on June 22 this year clearly stated that it is necessary to formulate guidelines for the protection of intellectual property rights in cross-border e-commerce to prevent counterfeit and shoddy products.

According to the 21st Century Business Herald reporter's investigation, intellectual property rights issues in the field of cross-border e-commerce exports are complex, involving different jurisdictions on the one hand, and suppliers, logistics companies, e-commerce platforms, and sellers and other responsible entities on the other. In order to promote the healthy development of cross-border e-commerce exports, intellectual property protection is urgent.

A "hunting" for Chinese sellers

Some cross-border e-commerce practitioners introduced to reporters that there are three main types of intellectual property infringement disputes involved in the e-commerce industry, namely trademark infringement, patent infringement and copyright infringement. Since the sales market of my country's cross-border e-commerce sellers is mainly in Europe and the United States, where there is a strong legal awareness, intellectual property infringement is prone to occur. For example, if the seller's store uses other brands of goods, it may constitute copyright infringement.

SHEIN, a Chinese cross-border e-commerce fast-fashion clothing brand, is facing such a lawsuit in California, USA. A trademark infringement lawsuit was filed by AirWair International, the company of Martin boots and shoes international brand Dr Martens. AirWair International stated that SHEIN’s shopping website used Dr.Martens’s Commodities induce consumers, and the "Martin boots" they sell and more than 20 other products are counterfeit products.

SHEIN is a Chinese cross-border e-commerce apparel brand that is well-known overseas and specializes in overseas markets. Qixinbao shows that in August 2020, SHEIN will be valued at US$15 billion after the E-round financing. According to statistics from App Annie, a mobile application monitoring agency, as of May 17, SHEIN's downloads ranked first among iOS shopping apps in 54 countries and first among Android devices in 13 countries.

However, among many cross-border e-commerce export sellers facing intellectual property disputes, SHEIN's experience is not unique. According to data from the U.S. District Court for the Northern District of Illinois, in the first quarter of 2020, of the 180 related cases filed in the Northern Illinois court, 92 were related to cross-border e-commerce in China; out of 100 related cases in the second quarter , 82 of them are related to China's cross-border e-commerce.

It is true that, as a new business form of cross-border e-commerce, the legal issues faced by this field are relatively complicated. Although intellectual property rights infringement disputes exist, the industry has also generally reached a consensus that this is a knowledge of Chinese cross-border e-commerce sellers. The hunting of property rights litigation, some infringement lawsuits may not have a legal basis, but Chinese sellers often cause loss of profits because of the calm mentality of not responding to the lawsuit actively. For example, in the United States, there are law firms that specialize in infringement business for Chinese sellers. Some powerful international brands usually entrust these law firms to help them deal with product infringement disputes.

Greer, Burns & Crain is an American law firm nicknamed the favorite to sue Chinese sellers. According to the official website of this law firm, the international trademark legal information authoritative media "World Trademark Review" rated it as the most active trademark litigation law firm in the United States in 2020. In 2020, 243 trademark lawsuits were filed, involving more than 22,000 markets. Target and 5900 websites, 97% of which are registered in Mainland China.

Attorney Feng Xiaopeng, a partner of King & Wood Mallesons' Compliance Department, said in an interview with a reporter from 21st Century Business Herald, “Overseas, especially in the United States, there are law firms that specialize in prosecuting intellectual property infringements against Chinese cross-border e-commerce sellers. The emergence of this phenomenon is that, on the one hand, these law firms have taken advantage of the unconfident mentality of Chinese companies and Chinese sellers’ ignorance of overseas litigation procedures. Ideas and concepts make sellers often want to keep things quiet."

“In the face of overseas intellectual property infringement litigation, even if sellers hire a lawyer, they rarely choose to settle disputes directly through litigation. Instead, they choose lawyers to negotiate and shelve the dispute, which is actually a loss. Some do not constitute infringement or act When rights are disputed, Chinese sellers can actually fight back through some civil proceedings in order to protect their legal rights and commercial interests, thereby enhancing the awareness of rights protection in the entire Chinese cross-border e-commerce industry." Feng Xiaopeng further analyzed. say.

Complicated intellectual property disputes in cross-border e-commerce

However, the approach of "resting things and calming people" cannot avoid the operating losses that have been caused to sellers by intellectual property disputes. On June 24, 2020, Amazon, the mainstream cross-border e-commerce platform, announced the establishment of a global anti-counterfeiting team, which is specifically responsible for cracking down on counterfeiters who violate laws and regulations and Amazon mall rules and sell counterfeit goods on Amazon. Amazon clearly stated that once the infringement is confirmed, the listing (product page) will be removed, the sales authority will be suspended, inventory may be lost, and the brand may even be paid high compensation.

According to a number of industry insiders interviewed by reporters, the intellectual property disputes involved in cross-border e-commerce sellers are complex. On the one hand, cross-border e-commerce involves multiple jurisdictions, and there are differences in national laws. In addition, e-commerce companies such as Amazon and AliExpress The platform also has its own platform rules; on the other hand, the e-commerce field involves multiple parties such as suppliers, logistics companies, and sellers. "For independent sites with free brands, the awareness of intellectual property rights is generally more standardized; for the majority of small and medium sellers who need to use third-party platforms to sell, they usually do not have their own production lines, and the products are purchased from suppliers. It is difficult to have autonomy in the protection of intellectual property rights, and it depends more on trust in purchasers and suppliers." Attorney Feng Xiaopeng told reporters, "In fact, many cross-border e-commerce intellectual property disputes are not handled through judicial channels. , Which is often resolved through the platform’s resolution mechanism and administrative law enforcement."

There are two main types of cross-border e-commerce sales channels, one is third-party platforms such as Amazon and AliExpress, and the other is independent stations built by sellers. Among them, third-party platforms take advantage of traffic and logistics advantages to account for the main body of cross-border e-commerce sales, and at the same time bear the important responsibility of resolving intellectual property disputes.

The reporter learned from the cross-border e-commerce platform AliExpress that the platform has opened up the Alibaba Intellectual Property Protection Platform (IPP platform) to the right holders, and the right holders can submit intellectual property qualifications and file complaints about infringing goods through this platform to maintain Own legitimate rights and interests; at the same time, the platform will also actively prevent and control the products on the platform to prevent the risk of intellectual property infringement.

According to AliExpress, AliExpress has the right to take the following penalties for sellers who are complained of infringement, including but not limited to returning or deleting products or information, restricting product release, temporarily freezing accounts, and closing accounts.

"Every year, right holders complete hundreds of thousands of complaints and rights protection through the IPP platform. This complaint mechanism effectively protects the legitimate rights and interests of the right holders, and at the same time protects the interests of consumers." The relevant person in charge of AliExpress told reporters. , "Compared to domestic e-commerce, cross-border e-commerce directly faces the different legal systems and regulatory environments of major exporting countries, which involve regional issues of intellectual property rights, and complex scenarios such as transnational intellectual property cases."

In exploring the regulation of cross-border e-commerce, countries need to cooperate and seek wisdom. my country has actively promoted related work based on the foundation of e-commerce development over the years. At the World Customs Cross-border E-commerce Conference held in Beijing in February 2018, a "Beijing Declaration" on the development vision of global cross-border e-commerce was officially released to convey to the outside world the views of China Customs and World Customs and other stakeholders. The consensus and vision of global cross-border e-commerce development. At the same time, the conference also mentioned the need to actively deal with taxation, intellectual property protection and other related challenges.

Self-built independent station to enhance brand value

Intellectual property infringement disputes frequently occur in cross-border e-commerce. According to industry insiders, branding operations and establishing independent stations are an effective way to avoid infringement and effectively respond to the increasingly stringent intellectual property compliance environment. Especially since the Amazon platform has banned many large illegal sellers since this year, independent stations have gradually become a consideration option for many sellers who want to become bigger and stronger.

An independent website is different from the identity of a third-party seller who opens a store on Amazon and other e-commerce platforms. It is a website built by the seller and has an independent domain name for conducting e-commerce business. According to a seller survey report conducted by Hugo Cross-border, 34% of sellers clearly plan to deploy independent station business in 2021, and another 20% of sellers are also considering it.

The "Overseas Independent Station In-depth Report" issued by China Merchants Securities pointed out that the independent station is one of the mainstream sales channels of cross-border e-commerce, which is more conducive to the creation of independent brands and the realization of consumer value than relying on third-party platforms; The competitive landscape is different. The market share of leading integrated e-commerce companies in Europe and the United States is significantly lower than that in China, providing a good development environment for the rise of independent overseas stations.

At the same time, supporting cross-border e-commerce companies to establish independent stations is also becoming a direction strongly advocated by the country. On July 9, the General Office of the State Council issued the "Opinions on Accelerating the Development of New Forms and New Models of Foreign Trade", stating: "Encourage foreign trade companies to build independent stations and support professional station platforms to optimize and improve service capabilities." Li Xinggan, Director of the Department of Foreign Trade, Ministry of Commerce According to the introduction, "According to estimates, the number of independent stations in my country has reached about 200,000. Companies report that compared to third-party platforms, independent stations have several advantages. One is to reduce operating costs; the other is to carry out precision marketing; and the third is to improve. Brand Value."

In an interview with a reporter from 21st Century Business Herald, Chen Zhihao, the co-founder of the cross-border e-commerce independent website SaaS construction site providing shop craftsman SHOPLAZA, said:

"Through independent stations, the brand can connect with any potential consumer worldwide. The brand can not only let consumers have a comprehensive understanding of their products through detailed product introductions, but also through brand stories, brand concepts, and community Such forms allow consumers to have a better understanding of the brand. Brands can also directly talk to consumers, collect consumer feedback, and analyze consumption data to help brands better iteratively optimize their products, and establish a long-term and long-term relationship with consumers. Effective interaction."

Attorney Feng Xiaopeng believes that due to the different legal environments and enforcement efforts of each country and region, sellers can establish independent stations in different countries for localized operations, which can ensure that problems in one region’s operations will not affect other regions’ operations. Sales activities to avoid chain reactions.

Since the outbreak of the epidemic, cross-border e-commerce export markets have continued to become popular. While driving a wave of sellers to earn money and dividends, it also allows providers of SasS services to take advantage of the trend. As infringement disputes have become a pain point for more and more sellers, The stand-alone website building platform is also expanding its business model. "With the increasing rise of independent stations, we recommend that brands should have the awareness of anti-infringement maintenance at the initial stage of creation, build brand barriers by establishing their own intellectual property rights, and form a set of own protection mechanisms to respond to emergencies. "Chen Zhihao told reporters, "In the area of intellectual property protection, the shopkeeper has always been committed to providing guidance to merchants. For example, in order to make the brand stand out in the fierce competition in the international market, how to create a brand with its own tone and carry out the corresponding brand. Marketing, and how the brand can better protect unique technologies, designs, products, etc. against infringement after a certain degree of success."