With the rapid rise of “cross-border e-commerce”, intellectual property issues such as patents, trademarks, copyrights, and trade secrets have gradually become prominent, and cross-border e-commerce intellectual property risks and disputes have continued to emerge. At the first executive meeting of the State Council in 2016, “cross-border e-commerce” has become the focus. To this end, strengthening the protection of cross-border e-commerce intellectual property rights, improving the legal awareness of cross-border e-commerce enterprises in intellectual property rights, and enhancing the ability to prevent intellectual property risks are of great significance to ensuring the rapid and healthy development of cross-border e-commerce.
According to the “2018-2019 China Cross-border E-commerce Market Research Report” released by iMedia Consulting, in 2018, the scale of cross-border e-commerce transactions in my country reached 9.1 trillion yuan. With the advancement of the “Belt and Road Initiative”, cross-border e-commerce will reap more generous policy dividends. However, the huge intellectual property risks faced by my country’s cross-border e-commerce have become an important “shortcoming” in the development of my country’s cross-border e-commerce industry. Its infringement forms are mainly manifested in production, use, sales, promised sales, import and export, etc., especially “promised sales” such as advertising, exhibition displays and website displays are not allowed.
Currently, most domestic small and medium-sized enterprises engaged in cross-border trade have few trademarks and zero patents. Once foreign companies feel that their market share is affected, they will actively defend their rights, and disputes, warning letters, and lawsuits will ensue. The other party has registered trademarks and patents, and they can defend their rights from a legal perspective, but domestic companies do not, and the result is bound to be a loss.
Before domestic companies enter the international market with their products, they must put their intellectual property rights first, conduct due diligence on product infringements, and conduct avoidance designs to reduce the risk of infringement. Relevant legal documents in the United States stipulate a statutory triple compensation amount for intentional infringement and additional attorney fees. Therefore, before domestic companies sell their products to the United States, they should conduct due diligence on relevant intellectual property rights and hire lawyers to provide legal opinions on non-infringement of products or legal opinions on the invalidity of the patent rights of competing products in advance. This can effectively avoid or reduce the risk of being accused of paying triple compensation. In addition, effective avoidance designs can also reduce the legal risks of being sued for intellectual property infringement and losing the case.