In any IP case involving copyright or trademark infringement on a social media platform, it is theoretically and practically indisputable that a plaintiff may sue the relevant social media company as a co-defendant and request a court with geographical jurisdiction over said social media company to handle the case if a social media user exhibits any works that infringe upon the copyrights or trademarks of others on a relevant social media platform. However, in terms of patent infringement cases, there are few academic discussions or cases regarding whether a rights holder can sue a social media company as a co-defendant and request a court with geographical jurisdiction over the social media company to handle the case if a user posts information about infringing products on the social media platform. The lack of discussion surrounding this might be because it is controversial to suggest that the posting of information about infringing products on a social media platform constitutes an offer to sell, and that a social media company can be considered a co-seller who offers infringing products for sale.

Recently, the writer handled a dispute involving two defendants, namely, Anshan Lifu Electrical Appliance Factory (“Anshan”), a manufacturer and social media user, and Sina Corporation (“Sina”), a social media company that operates the Weibo social media platform. Both Beijing Intellectual Property Court and the Supreme People’s Court ruled that a court with geographic jurisdiction over Sina could hear the case, so long as the plaintiff could adduce preliminary evidence proving that the two defendants might have committed joint infringement by way of Weibo. This case is used as an example of how an appropriate jurisdiction may be selected in a situation involving offers to sell infringing products on social media platforms.

I. Case brief

In this case, the plaintiff, based on investigations and evidence, was able to show that Anshan had not only sold and offered to sell the alleged infringing products on Taobao but had also released promotional materials and sold such products via its Weibo account. Therefore, the plaintiff filed a patent infringement lawsuit against Anshan and Sina, which has operations in Beijing, at Beijing Intellectual Property Court on the ground that the defendants had jointly made offers of sell. Anshan raised an objection to jurisdiction, arguing that the Beijing Intellectual Property Court, which does have geographical jurisdiction over Sina, had no jurisdiction over Anshan because the defendants did not jointly offer the products for sale.

However, the first instance court held that since the plaintiff had produced preliminary evidence to prove that Anshan had released videos showing the alleged infringing products on Weibo and Sina had provided a social media service to Anshan, Sina might have committed joint infringement if Anshan’s release of videos on Weibo constituted an offer to sell. Therefore, a court with geographical jurisdiction over Sina could handle the matter. The above ruling of the first instance court was upheld on appeal to the Supreme People’s Court.

II. Jurisdiction analysis

This was a typical case which involved the offering things for sale on a social media platform and objections to jurisdiction. When the plaintiff took Sina as a co-defendant, disputes over the following issues could have occurred regarding jurisdiction:

A. Does a seller who publishes infringing product information on a social media platform make an offer to sell?

According to Article 24 of Several Provisions of Supreme People’s Court on Issues Relating to Laws Applicable for the Trials of Patent Dispute Cases (2001), “offering for sale” refers to “the expression of an intent to sell commodities by means of advertisements, window displays at stores or exhibitions”.

In light of the above definition, the writer believes that so long as a seller expresses its intent to sell infringing products on a social media platform, such as Weibo, and the social media platform is actually able to facilitate transactions, the posting of infringing product information on a social media platform can be considered an offer to sell by that seller. Unlike ecommerce platforms, such as Taobao, social media platforms generally do not facilitate direct transactions. Therefore, the issue of whether social media platforms can facilitate transactions is controversial. In this regard, the writer believes that so long as the social media platform is available to the general public and users of that social media platform are able to communicate with each other, the social media platform should be considered as having the ability to “facilitate transactions”.

For example, Weibo, the social media platform in the case discussed, provides users with not only the ability to post information, but also the ability to spread and communicate (“Comments”) specific information with the public. Moreover, Weibo has a service called “Message”, which allows users to contact and communicate with members of the public who are interested in the information that they post. In practice, we can see that many Weibo users have posted product-related videos or pictures to attract potential customers who they might communicate with via “Message” or they have posted product information containing web links to their Taobao stores to sell products or services, such as clothing, fast-moving consumer goods, wedding photography services, and other things.

Although Weibo is not a traditional ecommerce platform on which customers can directly select products and make payments, it is an information posting, dissemination and communication platform available to the general public, on which sellers can promote their products or services, and even negotiate and bargain prices when attempting to make sales. Therefore, in the current social environment where online shopping is popular and accounts for a significant share of the retail market, Weibo actually functions as a de facto ecommerce platform on which sellers can offer things for sale. For the general public, they can use the “Comments” or “Message” ability of Weibo to enquire about product features, prices, delivery information and other things from sellers. When the terms and conditions are settled, the transaction between the parties can be concluded.

In summary, the writer believes that if:

1) a seller expresses its intent to sell infringing products on a social media platform;

2) the general public can purchase infringing products via that social media platform; and

3) the infringing products posted on that social media platform fall within the protection scope of the patent at issue;

then said act of posting should be regarded as a form of offering to sell infringing goods.

B. Are social media platform operators and sellers joint infringers?

Article 9.1 of Tort Law of the People's Republic of China stipulates that: “Persons who instigate or assist others in committing a tortious act shall bear joint and several liability with the doer.”

We can see by applying Article 9.1 to the facts of the case under discussion that the seller intentionally posted videos about the infringing products on its Weibo account, which is certified and managed by Sina, the operator of Weibo. However, Sina, as the manager and service provider of Weibo, failed to fulfil its obligation of review, and such failure led to the dissemination of information about the infringing product. Thus, Sina objectively assisted Anshan in offering to sell infringing products. Therefore, Anshan and Sina may be taken as joint sellers who offered to sell the infringing products. That is to say, they may be considered joint infringers.

From a procedural perspective, a plaintiff may only sue a social media platform as a liability-bearing joint infringer if the plaintiff has submitted preliminary evidence to prove an association between the manufacturer and the social media platform. In the (2016) Jing 73 Min Xia Zhong No. 1176 judgment that was issued by Beijing Intellectual Property Court in 2018, a leading second instance case involving a jurisdiction objection, the plaintiff argued that the defendant published the plaintiff’s cartoon works on Weibo without permission, and had thus infringed upon the plaintiff’s copyright. In this case, the court ruled that the plaintiff’s preliminary evidence had proven that the defendant and Sina were in association to commit the infringement, and the plaintiff, during litigation, explicitly requested orders to enjoin the two defendants from committing infringement and to require them both to apologize. Therefore, the defendant and Weibo were co-defendants. According to Article 35 of the Civil Procedure Law: “in a lawsuit for which two or more People's Courts have jurisdiction, the Plaintiff may file a lawsuit with either court.” Therefore, Beijing Intellectual Property Court, which has geographical jurisdiction over Sina, was competent to hear the dispute.

C. Judging the existence of an offer for sale in the face of an objection to jurisdiction

As only product information was published on the social media platform, whether the products exhibited were infringing products was a critical factor in deciding whether the Anshan and Sina had jointly offered infringing products for sale. However, such matters are normally something that should be determined following a substantive hearing, and should not affect the issue of jurisdiction. In this regard, the second instance court held:

In a case involving an objection to jurisdiction, the court, in principle, need only hear facts related to the establishment of jurisdiction. Where such facts also involve substantive disputes, the court need only ascertain whether preliminary evidence can serve as an arguable jurisdictional connection, rather than expressly rule on the particulars of the substantial disputes. Therefore, as the patentee argued, the manufacturer and seller of the alleged infringing products, together with Sina, jointly offered the alleged infringing products for sale. The court with geographic jurisdiction over Sina may hear the case. Whether the manufacturer and seller of the alleged infringing products, along with Sina, have committed joint infringement and whether they shall bear joint infringement liabilities is an issue subject to substantive hearing, and will not affect the determination of jurisdiction.

Therefore, when dealing with the objections to jurisdiction, the criteria that the court was concerned with when deciding upon jurisdiction was whether the plaintiff had preliminary evidence to prove that Anshan and Sina committed infringement in association, so as to establish that the defendants’ acts were joint for the purpose of infringement. This creates a jurisdictional connection between the facts and the court with geographic jurisdiction over Sina.

III. Epilogue

It is controversial to say that releasing information about infringing products on a social media platform constitutes an offer to sell and the issue of whether the social media platforms can be co-sellers is rarely discussed. The writer is of the opinion that according to the above legal interpretation of “offering for sale”, if a seller expresses their intention to sell infringing products on a social media platform and that platform might have facilitated the transaction in some way, the seller’s publication of product information will constitute an offer to sell. For instance, a social media platform does, in fact, assist a seller to offer infringing products for sale by spreading information about the infringing products, either deliberately or negligently, and so, they are co-infringers. In addition, as infringement should only be determined following a substantive hearing, if a plaintiff, in response to an objection to jurisdiction, has preliminary evidence to prove that the seller and the social media platform acted in association to carry out infringement, it is feasible to argue that the parties engaged in joint infringement, and thus a jurisdictional connection between the facts of a case and a court with geographic jurisdiction over the social media platform can be established.

[1] (2018) Jing 73 Min Chu No. 1626 Decision

[2] (2019) Zui Gao Fa Zhi Min Xia Zhong No. 85 Decision