48 Asian Legal Business | November 2024 Legal Risks and Management in Cross-border E-commerce Over the past few years, cross-border e-commerce has been recognized as the new engine of China’s exports. The Greater Bay Area has become the main gathering place for cross-border e-commerce enterprises, with Shenzhen being known as the “capital of cross-border e-commerce”. Due to the change in business model, the main risks in international trade faced by cross-border e-commerce sellers are different from those faced by traditional exporters in certain aspects. I. Intellectual Property Rights For traditional manufacturing enterprises, the main legal risks in the field of intellectual property rights are disputes related to intellectual property attribution and the allocation of responsibilities in intellectual property infringement with their overseas customers (brand owners or retailers). As OEM is the most common way, trademark infringement claims and defenses in overseas markets are generally controlled by their overseas customers. Furthermore, if the overseas customers are also involved in product development, patent claims and defenses in overseas markets will also be controlled by them. On the other hand, cross-border e-commerce enterprises usually sell self-branded products, so they tend to focus on overseas trademark registration and protection. Besides, many cross-border e-commerce enterprises also invest a lot of resources to carry out independent research and development, so overseas patent registration and protection are even more important for them. In addition, the characteristics of cross-border e-commerce also lead to the fact that once intellectual property infringement occurs in the US, it is easier for claimants to seek remedies through temporary restraining orders (TRO), temporary injunctions (preliminary injunction) and other interim measures. If products are sold on e-commerce platforms (e.g., Amazon or AliExpress), claimants of intellectual property rights can not only file lawsuits, but also submit complaints on those platforms that has already become important battlegrounds for intellectual property disputes. II. E-commerce Platform Compliance Most Chinese cross-border e-commerce enterprises are still selling on e-commerce platforms. Therefore, whether aligning with platform policies has also become the focus of cross-border e-commerce enterprises’ compliance. Taking Amazon as an example, Amazon generally has the following prohibitions: 1. Intellectual property infringement: sellers are not allowed to sell products that infringe trademarks, copyrights or patents. 2. Selling restricted or prohibited products: certain product categories are restricted on Amazon and require specific licenses or compliance with specific regulations to sell. Examples include hazardous materials, certain electronics, and pharmaceuticals. Prohibited products include illegal items, pirated goods, certain animal products, etc. 3. Misleading or inaccurate product information: sellers must provide accurate descriptions of their products and cannot exaggerate or falsely advertise the characteristics of their products. 4. Improper business names and communications: sellers’ business names must be accurate and not misleading. Unauthorized marketing emails and improper use of customer phone numbers are also prohibited. 5. Manipulation of customer reviews: sellers may not manipulate customer reviews by offering incentives or otherwise; all reviews must be genuine customer feedback. Manipulation of reviews includes offering compensation in exchange for a review, asking customers to delete negative reviews, etc. 6. Transfer transactions or buyers: sellers may not attempt to direct Amazon users to other websites or sales channels, which includes containing links or URLs in emails. 7. 跨境电商法律风险和应对 The Greater Bay Area
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