In the case that the alleged infringing products are sold online, and only after a buyer submits the order, would the seller purchase corresponding products from a third party and instruct the third party to deliver the products to the buyer directly, the delivery by the third party shall be considered to be the delivery by the seller and the place of shipment shall be deemed as the seller’s place of shipment, which could constitute the connection point of jurisdiction for the seller to be the defendant of the infringement case.
Xiamen A Company claimed in the lawsuit that as the patentee of the utility model patent in question, they entrusted an agent to buy the alleged infringing products from the online shop of Fenyang B Shop on “Taote” application under the supervision of a notary and using a phone provided by the notarial office on June 15, 2022. After receiving the order, Fenyang B Shop bought corresponding goods from a third party and filled in the receipt address for the order with Xiamen A Company’s receipt address. The third party directly mailed the goods to Xiamen A Company (Drop shipping). On June 29, 2022, the notary, on behalf of Xiamen A Company, received a package indicating that the alleged infringing products were mailed from Dongxi Lake District, Wuhan City, Hubei Province, and the package was also attached with words and marks indicating “Pinduoduo”. Therefore, Xiamen A Company sued Fenyang B Shop as the defendant to Wuhan Intermediate People’s Court of Hubei Province requesting Fenyang B Shop to immediately stop the infringement of the patent in question and pay damages.
Fenyang B Shop objected to the jurisdiction, arguing that the selling place of the alleged infringing products and the defendant’s residence are both in Fenyang City, Shanxi Province, so Wuhan Intermediate People’s Court has no jurisdiction over this case. This case should be transferred to Lvliang Intermediate People’s Court of Shanxi Province for trial.
Wuhan Intermediate People’s Court of Hubei Province held that as it is neither at the place of the accused infringement behavior, nor at the defendant’s residence, this case does not fall under their jurisdiction and should be transferred to the Court that has jurisdiction over it. Therefore, on February 15, 2023, Wuhan Intermediate People’s Court decided to transfer the case to Taiyuan Intermediate People’s Court of Shanxi Province. Fenyang B Shop was dissatisfied and filed an appeal. On June 15, 2023, the Supreme People’s Court made a final civil ruling to 1. Revoke the challenged civil judgment made by Wuhan Intermediate People’s Court of Hubei Province; and 2. Order Wuhan Intermediate People’s Court of Hubei Province to trial on this case.
The Court’s effective judgment determined that on the network, the sales place prescribed by Rule 2 of Supreme People's Court's Judicial Interpretation on Several Provisions Concerning Issues Concerning the Application of Law in the Trial of Cases on Patent Disputes, in principle includes the major business place of the online seller and the place of storage, shipment, or seal and detention of the alleged infringing products, which is not subject to online buyers’ intentions. However, it is usually inappropriate to regard the place for receiving online purchased goods of online buyers, which may be arbitrarily chosen by buyers, as the place of online sales behavior. In this case, Xiamen A Company submitted evidence to primarily prove that Fenyang B Shop is the online seller of the accused infringing goods, and that the accused infringing products were shipped from Wuhan City in Hubei Province, which is not subject to the will of the online buyer, Xiamen A Company, so this place of shipment constitutes the connection point of jurisdiction in this case. This case is drop shipping, in which after the buyer submits the order, the seller buys corresponding goods from a third party and instructs the third party to deliver to the buyer directly. Since the third party that delivered is not the party concerned in this case and its delivery was following the seller’s instruction, it was not performing the contractual relationship with the buyer. Therefore, the delivery by the third party should be considered to be the delivery by the seller and the shipment place of the third party should be deemed as the shipment place of the seller. In this case, the accused infringing goods were shipped from Wuhan City in Hubei Province, so Wuhan Intermediate People’s Court of Hubei Province has jurisdiction over this case.
(2023) Zui Gao Fa Zhi Min Xia Zhong No. 170
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