Abstract
Nowadays, it becomes an inseparable life habit for people to shop online for the reasons that the blooming development of Internet, the widespread use of smartphones and the conveniences and the character that no region restrictions of online shopping. Even before online shopping flourished, the traditional marketplace struggled with trademark counterfeiting, but after online shopping became mainstream, counterfeit trademarks exploded. Currently, government can’t figure out how to solve the problem, the registered trademark owners can’t fight for their rights, and consumers suffer a great loss. When selling counterfeit goods, there is no doubt that the tortfeasor should be responsible for the direct trademark infringement. It’s not settled, however, as to whether the online marketplace platform the trademark violator uses should be responsible for secondary trademark infringement when it played an active role in the promotion or sale of the goods. Since there is no existing legislation in Taiwan defining online marketplace platform secondary trademark infringement, one has to look to legal theories and precedents in US, European Union （EU）, and Chinese law. Generally, laws and regulations in the United States and China focus on business interests and tend to protect the online marketplace platform, while the European Union focuses on the protection of trademark rights. Overall, the United States and China’s legal stance towards secondary liability of the online marketplace platform for trademark infringement conflicts with the EU’s position. Can judges, however, use direct infringement and deemed infringement analysis under the Trademark Act, contributory infringement under the Civil Code, and limitations on liability for Internet service providers under the Copyright Act, to determine online marketplace platform regulation? Of the referenced legal frameworks, only online marketplace platforms playing an active role in the promotion or sale of goods that have a contract for intermediary brokerage with the seller fall under contributory infringement; other cases are not covered. E-commerce is an important development trend in future markets. Therefore, the Trademark Act should set forth relevant regulations like legal definitions, responsibility, and related exemptions for online marketplace platforms. But before amending the law, if contributory infringement of the online marketplace platform is established, the second paragraph of article 185 of the Civil Code should apply secondary liability to the online marketplace platform for trademark infringement. Still, judges should refer to EU judicial opinions to analyze how deep the online marketplace platform was involved in the transaction between the buyer and the seller. If the online marketplace platform charges a final value fee or helps the seller improve the visibility of the merchandise, which highly influence both sides of the transaction, the online marketplace platform should be liable.