On September 13, 2020, China’s Supreme People’s Court released the Guiding Opinions on Trial of Civil Cases Involving Intellectual Property Rights of E-commerce Platforms. The Opinions may make takedowns of infringing products sold on e-commerce platforms easier and more common. As Mark Cohen, prior U.S. IP Attaché in Beijing and now at Berkeley stated, the “The Guiding Opinion should further help implement obligations set forth in Section 1 (E) of the Phase 1 Trade Agreement regarding ‘Piracy and Counterfeiting on E-Commerce Platforms.'”

Article 3 reads,

3. If an e-commerce platform operator knows or should be aware of an infringement of intellectual property rights by an operator [seller] on the platform, it should take necessary measures in a timely manner based on the nature of the right, the specific circumstances and technical conditions of the infringement, as well as the preliminary evidence that constitutes the infringement and the type of service. The necessary measures taken should follow the principle of reasonable prudence, including but not limited to the removal, blocking, and disconnection of links. If the operators on the platform have repeatedly and deliberately infringed on intellectual property rights, the operators of the e-commerce platform have the right to take measures to terminate transactions and services. (emphasis added).

That Article 3 states “should be aware of” implies a requirement to actively look for infringement on e-commerce platforms and take the necessary measures specified.  Simply responding to IP holder complaints may not be sufficient for an e-commerce platform and instead, preemptive action may be required.