Help an e-commerce case, help, 100.

The case of e-commerce law involves many aspects. I don't know exactly what kind of situation you need. The main cases are: a. cybersquatting \ domain name dispute/domain name management case B. electronic signature case C. consumer rights case in e-commerce. D. Information service case E. Unfair competition case F. Unfair competition case, etc. I will cite a typical case above.

A. cybersquatting \ domain name dispute/domain name management case

Converse v Beijing State Grid Information Co., Ltd.

Plaintiff: Converse Company (USA), domicile: 0 1845 North Amdo or Gao Yi Street, Massachusetts, USA. Legal representative Jack? CEO Boyce.

Defendant: Beijing State Grid Information Co., Ltd., domiciled at No.29 Dong Zhong Street, Dongcheng District, Beijing (Room N 1, 5th Floor, Block B, Donghuan Plaza). Legal Representative Zhao Huichuan.

Claim: Request the defendant to immediately stop using and cancel the "converse.com.cn" domain name, and bear the litigation costs of this case.

Cause of action:

The plaintiff converse was founded in 1908 and has the exclusive right to use the registered trademark of converse. After more than 90 years of development, "Converse" has become a famous brand in the field of sports shoes and clothing in the world. It is sold to customers through about 9,000 dealers in more than 90 countries around the world, and has established more than 190 specialty stores and counters in major cities in China.

Defendant Beijing State Grid Information Co., Ltd. registered "converse.com.cn" for the first time on February 23rd, 2000, and used the domain name, but the website where the defendant used the domain name was online and had nothing to do with clothes and sports shoes.

Question:

How do you think this case should be decided? Why?

Judgment: The court ruled that both China and the United States are members of the Paris Convention for the Protection of Industrial Property. When its legitimate rights and interests are infringed in China, converse has the right to bring a lawsuit to the China court in accordance with the provisions of the Convention, and the China court will try the case in accordance with relevant laws and the provisions of the Convention. Converse Company is the owner of the trademark Converse registered in China, and its exclusive right to use a registered trademark is protected by the laws of China.

State Grid Corporation of China registered converse as its own domain name and used it without justifiable reasons, which may be confused with the products or services provided by converse, and may lead the public to mistakenly think that the domain name holder has some connection with converse, which may cause the public to be confused about its source and mislead network users to visit its website. This behavior occupies the business reputation of converse company for free, damages its rights and interests, and is subjective and malicious. According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Civil Disputes over Computer Network Domain Names, the registration and use of "Converse" domain names by State Grid Corporation constitutes an infringement of the exclusive right to use a registered trademark of Converse Company, which is unfair competition and should bear the legal responsibility to stop the infringement according to law. Converse's claim was established in accordance with the law and supported by our court.

To sum up, according to Article 4 of the General Principles of the Civil Law of People's Republic of China (PRC), Paragraph 1 of Article 2 of the Anti-Unfair Competition Law of People's Republic of China (PRC), and Articles 4, 5 and 8 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Civil Disputes over Computer Network Domain Names, the judgment is as follows:

Within 30 days from the effective date of this judgment, Beijing State Grid Information Co., Ltd. stopped using and cancelled the "converse.com.cn" domain name.

B. Electronic signature cases.

Introduction:

From June 5438 to October 2004, Mr. Yang met the girl Han. On August 27 of the same year, Han sent a text message to Mr. Yang to borrow money from him for emergency. The text message said, "I need 5000 yuan. I just returned to Beijing for eye surgery and can't go out. Please remit it to my card. " Mr. Yang immediately remitted the money to Han. More than a week later, Mr. Yang received a short message from Han again and lent him 6000 yuan. Because they were all short messages, Mr. Yang didn't want to borrow money for the second remittance. Since then, because Han has never mentioned the loan, he borrowed from Mr. Yang. Mr. Yang was wary and urged Han. However, the claim was unsuccessful, so he sued the Haidian court, demanding that Han return its 1 1 000 yuan, and submitted two bank remittance slips and two deposit certificates. But Han said that Mr. Yang owed it to her before he survived.

Therefore, during the trial, in the evidence submitted to the court, Mr. Yang not only provided two bank draft deposit certificates, but also submitted a Philips mobile phone with the number "1391166xxxxx", in which some short messages were recorded. For example: August 27th, 2004, 15:05, and then borrow some money to help. August 27th, 2004 15: 13 How can you be so real! I need 5 thousand, no more, no less. Besides, I just returned to Beijing for eye surgery yesterday, and now I can't go out and see anyone. If you support me, you have to remit the money to my card! Wait for the content of 18 SMS sent by Han.

After verification by the judge, the mobile phone number provided by Mr. Yang for sending text messages was dialed by Han himself. Han himself admitted that he started using this mobile phone number in July and August last year.

The court ruled that:

After trial, the court held that, according to the relevant provisions on recognition in the Supreme People's Court's Several Provisions on Evidence in Civil Proceedings, whether the mobile phone number "1391173xxxxx" was used by Ms. Han was clearly stated in the first trial that Ms. Han had entrusted an agent to withdraw her recognition before the end of the second court debate, but the change was not recognized by Mr. Yang. There is not enough evidence to prove that he confessed under coercion or serious misunderstanding. The plaintiff, Mr. Yang, no longer bears the burden of proof on whether the mobile phone number was used by the defendant, but the defendant should bear the burden of proof on whether the mobile phone was not used, and the defendant failed to provide relevant evidence, so the court confirmed that the number was used by Ms. Han.

According to the provisions of the People's Republic of China (PRC) Electronic Signature Law, which came into effect on April 1 2005, an electronic signature refers to the data contained in a data message in electronic form, accompanied by the data used to identify the signer and show that the signer approves the content. Data message refers to information generated, sent, received or stored by electronic, optical, magnetic or similar means. The forms of SMS are electronic signature and data message. At the same time, SMS can effectively express the content and can be retrieved and used at any time; Be able to identify the sender and receiver of data message and the time of sending and receiving. The reliability of the method of generating, storing and transmitting data messages provided by Mr. Yang in our hospital; Reliability of methods for maintaining content integrity; By investigating the reliability of the method used to identify the sender, the authenticity of the mobile phone short message as evidence can be determined. According to the relevant provisions of the rules of evidence, audio and video materials and data messages can be used as evidence, but data messages can be directly used as evidence for ascertaining facts and should be supported by other written evidence.

It can be seen from the short message sent by Ms. Han to Mr. Yang that on August 27, 2004, Ms. Han asked for a loan of 5,000 yuan and asked Mr. Yang to remit the money to his card. On August 29th, 2004, Ms. Han asked Mr. Yang whether the money had been deposited. On August 29th, 2004, the personal business certificate of China Industrial and Commercial Bank showed that Mr. Yang remitted 5000 yuan to Ms. Han. On September 7, 2004, Ms. Han borrowed 6000 yuan from Mr. Yang. On August 29th, 2004, Ms. Han asked whether the money had been remitted. On September 8, 2004, the personal business voucher of China Industrial and Commercial Bank showed that Mr. Yang remitted 6000 yuan to Ms. Han. From September 5, 2004 to June 5, 2005, Ms. Han promised to repay Mr. Yang many times.

The amount and time stated in the SMS sent by Mr. Yang through the number used by Ms. Han are consistent with the amount and time of remittance from Mr. Yang to Ms. Han reflected in the personal business voucher of China Industrial and Commercial Bank, and the SMS also contains Ms. Han's repayment intention. The two pieces of evidence confirm each other, which can confirm the fact that Ms. Han borrowed money from Mr. Yang. Accordingly, the mobile phone short message provided by Mr. Wang was adopted by our hospital as the true and effective evidence to prove the facts, which supported Mr. Yang's litigation request for Ms. Han to repay the loan.

Main problems:

1. It can be seen from the judge's judgment on this case that the judge cited the provisions of the Electronic Signature Law. Do you think SMS can be used as evidence in this case?

2. How to determine the legal effect of SMS?

3. Before the promulgation of the Electronic Signature Law, did you know of any relevant cases?

4. What is the significance of this case?

Simple answer:

In this case, the judge cited the relevant provisions of the Electronic Signature Law to judge the case, which I think is appropriate. According to the case description and electronic signature law, the mobile phone short message in this case can be used as evidence.

The core content of electronic signature law is to give data message, electronic signature and electronic authentication corresponding legal status. The concept of data message is very broad, which basically covers all documents, records, documents and contracts that exist in electronic form. We can understand it as the basic form of all electronic information in the information age. Before the promulgation and implementation of the Electronic Signature Law, we lacked the most basic provisions on the legal effect of data messages, such as whether data messages meet the requirements of written form, whether they can be used as originals, and what kind of evidence effect they have under what circumstances, which is very unfavorable to the development of China's information industry. It can even be said that due to the lack of provisions on the basic legal effect of data messages, the information society we have built lacks the most basic legal protection.

According to the provisions of Article 8 of China's Electronic Signature Law, the factors that should be considered in examining the authenticity of data messages as evidence are: "the reliability of the method of generating, storing or transmitting data messages; Reliability of methods for maintaining content integrity; Reliability of the method used to identify the sender; Other related factors. " That is to say, to examine the authenticity of data messages as evidence, we should mainly consider the following aspects: the operator of the system, the operating procedures, the security and reliability of the information system itself, and so on. For example, whether the system transmitting data messages has considerable stability, how likely it is to be illegally invaded or tampered with, whether it operates strictly according to the required procedures, whether it can effectively identify the sender, and so on.

In this case, for the main evidence-SMS, the judge examined the authenticity of the evidence according to Article 8 of the Electronic Signature Law and related regulations. Under the condition that the information source, sending time, transmission system are basically reliable and the file content is basically complete, the judge determined the evidential force of these SMS, and there was no evidence to the contrary to deny the probative force of these evidences. I think the applicable law is appropriate and accurate, and the judgment method is scientific and reasonable, which meets the requirements of the Electronic Signature Law.

Before the introduction of electronic signature law, there were many similar cases, mainly focusing on whether e-mail can be used as evidence. Due to the lack of direct legal provisions, the Shanghai High Court has also issued relevant explanations. With the promulgation of the Electronic Signature Law, this situation has been fundamentally changed.

According to relevant reports, this case is the first case decided by the court according to the electronic signature law after the implementation of the electronic signature law in China, which is of great significance. It means that China's electronic signature law has really begun to enter the judicial process, and the legal effect of data messages, electronic signatures and electronic authentication has been fundamentally guaranteed. Through the implementation of the electronic signature law, basically all activities related to informatization have their own corresponding judgment standards at the legal level.

C. cases of consumer rights in e-commerce.

Shi Wenquan v. Beijing 3721 Technology Co., Ltd. and others: Zhong Min Fa Min Chu Zi (2004) No.46 civil judgment of first instance.

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Author: Source: chinaeclaw.com Time: 2004-12/28.

Beijing No.1 Intermediate People's Court

civil judgment

(2004) Zhong Min Chu Zi No.46

Plaintiff Shi Wenquan, male, Han nationality, was born in 1970 12 18, and lives at No.3 Taotiao Hutong, Dongcheng District, Beijing.

Authorized Agent: Yu Wensheng, lawyer of Beijing Lianfa Law Firm.

Defendant Beijing 3721 Technology Co., Ltd., whose domicile is Room 6 10, Block B, He Qiao Building, No.8 Guanghua Road, Chaoyang District, Beijing.

Legal Representative: Hu Huan, general manager.

Authorized Agent: Anjin Yang, lawyer of Beijing Jincheng Law Firm.

Defendant Guofeng Internet Software (Beijing) Co., Ltd., whose domicile is Room 502, Gate 4, Building 3, Shangdi Third Street 1, Haidian District, Beijing.

Legal Representative: Zhou, Chairman of the Board of Directors.

Authorized Agent: Anjin Yang, lawyer of Beijing Jincheng Law Firm.

Plaintiff Shi Wenquan v defendant Beijing 3721 Technology Co., Ltd. (hereinafter referred to as 3721 Company) and Guofeng Internet Software (Beijing) Co., Ltd. (hereinafter referred to as Guofeng Internet Company). After accepting the case on February 23, 2003, our hospital formed a collegial panel according to law and held a public hearing on April 5, 2004. Yu Wensheng, the entrusted agent of plaintiff Shi Wenquan, and An Yang, the entrusted agent of defendant 3721 Company and Guofeng Network Company, attended the proceedings in court. The case has now been closed.

Shi Wenquan, the plaintiff, said that the plaintiff was an Internet user and often needed to search and browse information online. The plaintiff downloaded and installed Baidu search companion software and used it normally. Directly combined with Baidu website, IE toolbar has clear icons and menu descriptions. Recently, the plaintiff was prompted to install "network real-name software" when browsing some websites. After the plaintiff installed the online real-name software, it was found that the original Baidu search companion software in the computer, the Baidu search companion icon and menu in the IE toolbar were illegally deleted, which made it impossible for the plaintiff to continue searching with Baidu search companion software. In the process of reinstalling Baidu search assistant, the plaintiff found that the download and installation of Baidu search assistant were illegally blocked by online real-name software. After the plaintiff clicked on the "online installation" link in the related page of Baidu website, the system prompted that the installation failed. The plaintiff tried to download the installation file of Baidu search companion software to this machine for installation, but it was still illegally blocked by online real-name software and could not be installed. The plaintiff can download and install Baidu search companion software again after completely uninstalling the real-name software on the Internet. The illegal deletion and shielding of real-name software on the Internet has seriously affected the plaintiff's retrieval and use of Internet information, making the plaintiff have to spend time and energy uninstalling infringing software and reinstalling Baidu IE search partners. In order to prove that the real-name software was illegally deleted and blocked on the Internet, the plaintiff applied to Beijing Notary Office for network evidence preservation. The network real-name software comes from "372 1" website, and the website owners are Guofeng Internet Company and 372 1 company, and the software is supported by Guofeng Internet Company. According to the relevant provisions of the Consumer Protection Law, the above-mentioned online real-name software produced and operated by the defendant and provided technical support illegally deleted the software in the plaintiff's computer, and illegally monitored and blocked some network links browsed by the plaintiff, thus infringing the plaintiff's legal rights to use relevant software; The software did not elaborate on the infringing function, which infringed the plaintiff's right to know as a consumer of the software; The software blocked other software, infringed the plaintiff's right to choose the software independently, and constituted a compulsory transaction; The software illegally monitors users' online behavior, shields network link behavior and infringes on users' privacy. The plaintiff has the right to claim compensation for his infringement according to law. Specially bring a lawsuit to the people's court, requesting the people's court to order the two defendants: 1, to stop the infringement; 2. Apologize to the plaintiff in writing; 3. Compensation for the plaintiff's economic losses 1000 yuan; 4. Bear all the litigation costs of this case.

Defendant 372 1 Company and Guofeng Internet Company jointly defended: 1. The quality of the defendant's software products meets the requirements. The defendant's "372 1 Network Real Name" software is a product legally owned by the defendant, and its quality does not violate the mandatory provisions of national laws and regulations. When designing the above software, the defendant set the following functions: directly enter Chinese and English names in the browser address bar to quickly reach the website; Obtain a comprehensive search result; Clean up the URL in the browser address bar to protect and repair the user's IE browser from malicious damage. The software is developed in the form of plug-in software for IE browser, which makes it run automatically when IE browser runs, in line with industry practice. Second, as free software, the defendant fulfilled his obligations to users. The defendant's software can be downloaded free of charge by the unspecified public on the website, and the user does not have to perform any consideration obligation when downloading. When fulfilling the obligation of informing free users, the defendant only needs to consider the needs of ordinary users, without considering possible special users. When the user downloaded and installed the software, the defendant had explained the general situation, main functions, technical features, legal provisions and other matters of the software through the software license agreement and prompt box, and provided two consultation methods: Internet and toll-free telephone. When installing software, users can inquire about the software license agreement, function introduction, usage and other detailed information provided by the defendant, and choose Yes or No in the dialog box to decide whether to install or not. There is no behavior of forcing users to install. Finally, the defendant also provided users with a safe way to uninstall and delete the software completely from the computer. Therefore, the defendant did not infringe the plaintiff's right to know. Third, the phenomenon advocated by the plaintiff is not caused by the fault of the defendant. Ordinary users will choose to install the official version of the software without installing the defendant's real-name software in advance, but the plaintiff mistakenly installed the repaired version of the software. Only when the network real-name software has been installed and damaged can the fixed version of the software be downloaded and installed, which may be one of the reasons for this phenomenon. Another reason is software conflict. The plaintiff used the defendant's 372 1 online real-name software and Baidu's search companion software respectively. These two softwares both use an IE address bar, which are very similar in function, interface and operation mechanism. This usually leads to software conflicts. What the defendant can do is to try to avoid two conflicting softwares running at the same time, but this mainly depends on the consumer's choice. 4. The facts stated in the plaintiff's indictment lack basis. The plaintiff claimed in the indictment that after installing the defendant's software, it was found that the original Baidu search companion software in the computer, namely the Baidu search companion icon and menu in the toolbar, was illegally deleted, and the plaintiff was illegally blocked by the online real-name software during the reinstallation of Baidu search companion software. These facts are not reflected in the evidence. Other facts in the plaintiff's indictment are only based on notarization, and the conclusions drawn through speculation lack evidence support. To sum up, the court is requested to reject the plaintiff's claim. Guofeng Internet Company argues that it is not the operator of network real-name registration system business, and the plaintiff thinks that Guofeng Internet Company is the operator of network real-name registration system business only through the owner of the website "372 1", which is inconsistent with the facts. Therefore, it is wrong for the plaintiff to sue Guofeng Internet Company and request to revoke its status as an unqualified party.

It was found through trial that:

On June 2, 2002, 165438+ Beijing International Wind Network Software Technology Development Co., Ltd. (hereinafter referred to as International Wind Network Software Company) applied to Chang 'an Notary Office for evidence preservation. Chang 'an Notary Office notarized the process of its agent's operation on the computer and the Internet, and issued a notarial certificate (2002) No.03799. Guofeng Internet Company proves that it has fulfilled its obligation to inform users of possible conflicts in its software and their solutions with the "372 1 Network Real Name Software License Agreement". The license agreement includes 12, which mainly includes: the copyright of this software belongs to Beijing International Wind Network Software Technology Development Co., Ltd., this software is free of charge, its function, its installation, its deletion, its automatic upgrade, its free support for Beijing International Wind Network Software Company, telephone and fax, etc. Exemption from software conflicts. If the compatibility problem cannot be solved, users can.

June 23, 2002 65438+February 23, 2002, Internet Guofeng Network Software Company applied to Chang 'an Notary Office for evidence preservation. Chang 'an Notary Office notarized the operation of the agent of Internet Guofeng Network Software Company on the computer, the process of downloading the required documents from the Internet and the downloaded documents, and made a notarial certificate (2002) No.05338, which was notarized in 94 steps. On June 2003, 5438+065438+1October 12, 372 1 Company applied to Beijing Notary Office for evidence preservation, and Beijing Notary Office operated the networked computer of 372 1 Company, and made a comparison between Baidu IE search partner and CNNIC common website software, Sina IE, and so on.

On June 5438+1October 65438+March 2003, 372 1 Company applied to Beijing Notary Office for evidence preservation. Beijing Notary Office notarized the process of 372 1 company's agent operating the networked computer there, and issued the notarial certificateNo. (2003) 124 14. 372 1 Company proves that it has fulfilled its obligation to inform users of possible conflicts and solutions of its software with the License Agreement of 372 1 Network Real Name Software. Article *** 18 of the License Agreement mainly includes: the copyright of this software belongs to Guofeng Internet Company, this software is free, its function, its installation and deletion, this software is automatically upgraded, and this software is supported by Guofeng Internet Company, telephone and fax, etc. for free. Exemption from software conflict and coverage in case of software conflict.

In June 2003, 5438+065438+1October 17, 372 1 Company applied to Beijing Notary Office for evidence preservation, and Beijing Notary Office notarized the process of 372 1 Company's agent operating the networked computer there, and made a statement (2003). The reason for the failure may be that your browser does not support our software, or you may have installed other similar software that conflicts with our software. If you like, you can contact Baidu Company ... "Follow the prompt box to uninstall the network real-name software, and then install Baidu IE search companion software. The successful installation and normal use prove that it has fulfilled its obligation to inform users of possible conflicts and solutions of the software, which is feasible.

On February 3, 2003, 65438, Shi Wenquan applied to Beijing Notary Office for evidence preservation. On June 7th, 2003, under the supervision of two notaries of Beijing Notary Office, Shi Wenquan operated his personal IBM THINKPAD X3 1 laptop and logged on Baidu website (website: Inquiring about the registration information of business websites, the website name: 372 1, domain name: www.372 1.com.cn).

The above facts include notarial certificate. 12806, inquiry form, notarial fee invoice, notarial certificate number 03799, notarial certificate number 124 14, notarial certificate number 15877, notarial certificate number 05338, notarial certificate number 13563.

We believe that,

Consumers' rights and interests in purchasing, using goods or receiving services for daily consumption are protected by law. Article 7 of the Law of People's Republic of China (PRC) on the Protection of Consumer Rights and Interests stipulates that consumers have the right to protect personal and property safety when purchasing and using commodities and receiving services. Article 8 stipulates that consumers have the right to know the real situation of the goods they buy or use or the services they receive. Consumers have the right to require business operators to provide information such as price, place of origin, producer, use, performance, specifications, grade, main components, production date, expiration date, inspection certificate, instruction manual, after-sales service or service content, specifications and expenses according to different conditions of goods or services. Article 9 stipulates that consumers have the right to choose their own goods or services. Consumers have the right to choose their own operators to provide goods or services, choose their own varieties of goods or services, and decide whether to buy or not to buy any kind of goods or accept or not to accept any kind of services. Consumers have the right to compare, identify and choose their own goods or services.

As far as this case is concerned, Shi Wenquan, as an Internet user, downloaded the free real-name software provided by 372 1 website and the Baidu search supporting software provided by Baidu website for his own use, which has constituted a consumer in the legal sense and should enjoy all the rights of consumers stipulated in China's Consumer Protection Law.

According to the facts ascertained in this case, Guofeng Internet Company is the copyright owner of online real-name software and provides technical support for online real-name software. Guofeng Internet Company and 372 1 Company are the owners of 372 1 website and the providers of network real-name software, so Guofeng Internet Company and 372 1 Company should bear legal responsibility for network real-name software. Guofeng international company claims that it is not a qualified defendant in this case, and there is no factual basis?