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Guidelines for Appealing Against Copyright Infringement Complaints

 

This article divides into five parts and will provide guidance to business on how to file an appeal for copyright infringement complaints:

I. Basic knowledge - Definition of copyright and Platform's responsibilities

II. Common copyright infringement scenarios on the Platform

III. Platform's rules on copyright infringement and appeal channels

IV. Pre-appeal preparation - How to search the complainant's copyright

V. How to prepare appeal material and raise an appeal

 

I. Basic knowledge - Definition of copyright and Platform's responsibilities

Definition

Copyright is a collection of rights legally vested in the author of a literary, artistic or scientific work. Copyright protects original works of authorship in literary, artistic and scientific areas, which are fixed in a tangible medium of expression.

 

Scope of protection

In accordance with the Copyright Law of the People's Republic of China and its implementation rules, all types of works that appear on the Platform, such as literary, artistic, photographic, audiovisual works, models and computer software, are protected by copyright. Copyright infringement is the use of copyrighted material, such as text, photos, videos, music and software, without permission of the copyright owner. 

Any work of foreigners and stateless persons which is published for the first time within the territory of China shall be protected by China's copyright law. The copyright enjoyed by foreigners or stateless persons in any of their works under an agreement concluded between China and the country to which the authors belong or in which they have their habitual residences, or under an international treaty to which both countries are parties, shall be protected by China's copyright law. Any work of an author from a country that has not concluded an agreement with China or does not join an international treaty to which China is a party and any work of a stateless person, which is published for the first time in a member country of an international treaty to which China is a party, or simultaneously published in a member country of the treaty and a non-member country, shall be protected by China's copyright law.

II. Common copyright infringement scenarios on the Platform

(1)  A product or packaging contains copyrighted material of others.

Example 1-1: Unauthorized use of a copyrighted work in a product listed or products for sale or its packaging 

Example 1-2: A product listed or products for sale or its packaging is an infringing copy.

A seller uses a third party's copyrighted work in the information pages without permission, such as product description, SKU main pages or details pages.

Example 1-1: Unauthorized use of a third party's copyrighted artistic work in the main pages/SKUs/details pages.

 

 

Image theft: Unauthorized use of the photographic works from a third-party website in the main pages/SKUs/details pages.

 

III. Platform's rules on copyright infringement and appeal channels

Any intellectual property right violations are prohibited on the Platform. You can refer to specific rules in the following ways:

If you are a seller on Alibaba.com, please refer: https://rule.alibaba.com/rule/detail/11000393.htm?spm=a271m.8038972.0.0.1de86d82myvghT

Platform penalty rules

For first-time violation, you will not receive any penalty points but we recommend business to conduct self-inspection to prevent second violation and other punishments.

For subsequent violations, you will receive 6 penalty points for each violation. A store that accumulates 48 penalty points will be closed.

In case of any product violation and infringing act, the Platform has the right to impose punishments, including but not limited to: deleting products/information, restricting the listings of products, temporarily freezing or closing the account. For sellers whose accounts are closed, the Platform has the right to prevent them from signing up again.

Please note that if you believe you do not infringe upon any copyright and want to appeal, you can file an appeal through the following channels:

On Alibaba.com, please raise the appeal at: https://appeal.alibaba.com/complaint/seller/appeal.htm

IV. Pre-appeal preparation - How to search the complainant's copyright qualification

Download directly: Access the Appeal page sent by the Platform, go to Intellectual property Attachment - Download Attachment, and download the complainant's copyright notice or registration certificate:

2) Search online:

For copyright registration certificates in China, please access Appeal page - Intellectual Property Number to obtain the complainant's copyright registration number and authenticate the copyright registration certificate on a public website.

Chinese copyright registration query: http://qgzpdj.ccopyright.com.cn/ (National Copyright Registration Database Management Platform)

 

The following are the public portals to search for copyright in Hong Kong, Taiwan, and some foreign countries (for reference only):

Intellectual Property Department of the HKSAR (trademark, patent, copyright, and design): https://www.ipd.gov.hk/chi/home.htm

Taiwan Intellectual Property Office: https://www.tips.org.tw

Australian copyright administration department: https://www.communications.gov.au/what-we-do/copyright

Canadian intellectual property databases (patent, trademark, copyright, design): http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr00012.html

U.K. Intellectual Property Office (patent, trademark, copyright, design): https://www.gov.uk/government/organisations/intellectual-property-office

Korea Copyright Commission: https://www.copyright.or.kr/eng/main.do

Agency for Cultural Affairs, Government of Japan: https://www.bunka.go.jp/english/index.html

U.S. Copyright Office: https://www.copyright.gov

3) Official Website Pirates

For image theft complaints, please access Appeal page - Intellectual Property Name to check the complainant's website and authenticate the image.

V. How to file an appeal against a copyright infringement complaint? What material should you prepare?

 If you received a copyright infringement complaint, you can file an appeal in different ways including but not limited to the following ways:

 

Formal proof of purchase

purchased from the complainant/trademark owner

If the product is purchased from the complainant/right owner, you need to provide:

1)documents (such as contract or invoice, or purchase orders or receipts for overseas sellers)about the transaction made in

2)recent six months before the complaint or within a reasonable period,

3)The contract or invoice must be signed or sealed by two parties,

4)and the purchased quantity must be appropriate (more than 20 pcs except for special cases).

5)the information of the purchased product must be consistent with that of the alleged product (for example, product model and pictures).

Do not use the invoice of any other product in support of the appeal, which will result in a waste of appeal opportunities.

authorized by the trademark owner to use the trademark

If you are authorized by the trademark owner to use the copyrighted work. You need to provide

1) the authorization letter from the right owner.

2) The authorization letter must be sealed or signed by the right owner and

3)specify the authorized copyrighted work.

4)Make sure that the authorization is still valid when the complaint is filed.

purchased from an authorized supplier of the right owner

If the alleged product is purchased from an authorized supplier of the right owner, please provide

1)the copyright authorization letter showing that your supplier obtained the product from the right owner.

2)The authorization letter must be signed or sealed by the right owner.

3)Same as direct procurement, you also need to provide the documents (invoice or contract) about the transaction made

4) in recent six months before the complaint.

5)The transaction documents must be signed or sealed by two parties,

6)and the purchased quantity should be appropriate or consistent with the actual quantity sold. The products shipped from your supplier should be no more than the supplier has purchased.

7)Ensure that the information of the purchased product is consistent with that of the alleged product (for example, product model and pictures). 

authorized by an authorized supplier of the right owner

If you are authorized by an authorized supplier of the right owner (e.g., I am authorized by B, and B is authorized by A, so I also have the authorization). To assert that you have an indirect authorization, please provide

1)the copyright authorization letter from a third-party dealer and

2)the copyright authorization letter that the third-party dealer obtained from the right owner.

3)The copyright authorization letter must be signed or sealed by the trademark owner.

Please make sure that the seal is legible and the authorization is authentic.

4) Please make sure that all authorizations are valid when the complaint is filed and list specific works.

5) It is recommended to provide the right owner's identity document, such as photos of the business license or both the front and back sides of the ID card.

Claim differences

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If you think your product is substantially different from the complainant's work, you can provide a comparison (as shown below), select "Substantial Difference" for the appeal type and submit the appeal.

 

Note: Please compare the alleged product and the complainant's copyrighted work, circle the specific differences, and provide a detailed description of the differences in text. There should be differences in overall visual effect between the alleged product and the complainant's copyrighted work. Subtle differences cannot be used as evidence under defense of Substantial Difference.

prior rights

prior online sales

To assert prior art or prior use right, you can provide evidence dated earlier than the date when the complainant's copyrighted work was published.

If you rely on defense of prior online sales,

please provide:

1)  complete screenshots of inquiries on the Platforms of Alibaba Group or prior orders on Alibaba platforms, such as AliExpress, Alibaba.com, etc., and

2)ensure the product information is consistent with that of the alleged product (such as product pictures and model) and

3)the transaction made prior to the date when the complainant's copyrighted work was published.

 

Prior offline sales

If you rely on defense of prior offline sales, please provide:

1) the purchase contract and invoice which shall be

2) signed or sealed by the two parties, and ensure that

3) the product information is consistent with that of the alleged product (such as product pictures and model) and

4) the transaction made prior to the date when the complainant's copyrighted work was published.

IP Right has been previously exposed or disclosed to the public

If you rely on defense of prior public disclosure, for example, in video, new media, or print media, please provide

1) the complete screenshots of webpages including the URL or photographs or scans of other materials, and ensure that

2) the screenshots include the specific publication date, and

3) the pictures and designs displayed on the webpages are clear and complete.

For example:

 

 Please note that:

The complainant may further assert that you had accessed the work prior to the date of publication of the copyrighted work, and you may need to further prove that the prior work was created prior to the date of creation of the copyrighted work.

 

IPR ownd by seller

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If you assert a ‘IPR owned by seller’defense, please provide:

1)  relevant valid evidence of your prior use right (such as trademark, copyright, and design patent) and

2) such right should be you claimed should be owned by you and

3)the filing date of such right should be earlier than the [date when the complainant's copyrighted work was published] and

4) such right should remain valid at the time when you file the appeal, and

5)the prior use right that you claimed should be consistent with that used in the alleged product/work.

Meanwhile, if you want to assert a defense that the copyrighted work is independently created by yourself, you can upload materials including but not limited to source files, manuscripts, creation ideas, original images, and other materials that can prove the originality of your work for review by the Platform. To ensure a fair and reasonable result, please provide as detailed evidence as possible. 

 

 

 

 

 

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