Comments to MOFCOM on Measures for the Administration of E-commerce Information Publicity (Draft for Comments)

2020-03-12 | All chapters

First, the regulation of Administrative Measures for the Public Disclosure of E-commerce Information (draft for comments) has detailed the disclosure obligations of the stakeholders of e-commerce business based on the PRC E-Commerce Law. From a practical perspective, on the one hand, we expect that the regulation can respect the commercial arrangements between platforms and business operators in light of the flexible nature of the e-commerce environment; on the other hand, we wish more protection on in-platform operators which may largely depend on clearer guidelines as to the reviewing rights and disclosure obligations of ecommerce platforms to be provided in the regulation.

Second, there are four articles with respects to intellectual property in this Measure, but unfortunately, the regulation is silent on the effect of the contractual agreements on IP protections reached between platforms and in-platform operators, as well as the relationship between such contractual arrangements and the regulation. In practice, in-platform operators who have a strong need to protect IP rights will generally enter into specific agreements with platforms on protection of their IP rights. The current draft of regulations does not specify or affirm the role of these contractual agreements to settle IP disputes.

In view of the professionalism and complexity of IP disputes, and the IP holders have a natural incentive to protect their IP rights, it is suggested that the regulation direct to the contractual arrangements between the platforms and in-platform operators to resolve such disputes.

Last but not least, it’s advised to carefully and fully investigate the necessity and evaluate the value of such provision, assuming that it is not conducive to the protection of online intellectual property rights, increasing the cost of all participating parties, and ultimately harming consumers and infringing trade secrets and personal privacy, then it should be suspended.