As an important growth engine of online retail in China, live-streaming e-commerce, while developing rapidly, has also given rise to new types of infringing acts characterized by immediacy, fragmentation, and shell-changing continuity, resulting in rights holders facing difficulties in evidence collection, attribution of liability, low compensation, and the inability to effectively curb repeated infringement in the protection of intellectual property rights.
This article analyzes two recent civil cases handled by the author, in one of which punitive damages of RMB 10 million were awarded, and in the other the statutory maximum damages of RMB 5 million were granted. These cases not only reflect the practical challenges in the governance of intellectual property infringement in the field of live-streaming e-commerce in China, but also provide strategic references for rights holders seeking better enforcement outcomes.
Evolution of Infringement Models from Traditional E-commerce to Live-streaming E-commerce
According to data released by the National Bureau of Statistics, China’s online retail market remains on an overall growth trajectory.
At the same time, third-party industry analysis institutions generally point out that a clear divergence has emerged between traditional shelf-based e-commerce and live-streaming e-commerce: the growth rate of the former has slowed, while the latter continues to grow at a faster pace.
This evolution in e-commerce business models has not only reshaped the structure of online transactions, but has also posed new challenges to traditional mechanisms for the protection of intellectual property rights.
Although traffic distribution on live-streaming e-commerce platforms shows a significant concentration at the top, the relatively low entry threshold, short conversion chain, and high monetization efficiency continue to attract a large number of small streamers, micro-merchants, and individual operators.
Compared with the more standardized and static operating model of traditional shelf-based e-commerce, infringing acts in live-streaming scenarios exhibit stronger immediacy, fluidity, and concealment in terms of occurrence mechanisms, evidence discovery, and attribution of liability.
This means that rights holders can no longer simply rely on traditional ex post evidence collection and platform complaint mechanisms, but must face higher evidence collection costs and a more complex enforcement environment.
In traditional shelf-based e-commerce, links to infringing goods often have strong continuity, store operators are relatively stable, and relevant transaction records are easier to fix and trace. Therefore, rights holders can usually rely on ex post evidence collection, platform complaints, and conventional litigation procedures to implement relatively mature enforcement strategies.
The operating model of live-streaming e-commerce, however, is entirely different. It revolves around real-time content display and instant transactions, so infringing acts often exhibit characteristics such as immediacy, fragmentation, and dynamism, making evidence preservation significantly more difficult. Specifically:
- After the live stream ends, infringing content may quickly disappear
- Product links may be repeatedly taken down and re-listed
- Operators may frequently change live-streaming accounts, sales stores, or live-streaming rooms within a short period of time
Therefore, in dealing with infringing acts in live-streaming e-commerce, more targeted evidence collection and enforcement strategies are often required, and such issues are particularly prominent in industries such as fashion and luxury goods.
Enforcement Challenges in Live-streaming E-commerce Intellectual Property Infringement Cases
Intellectual property infringement cases involving live-streaming sales often face four common practical challenges:
- Effective preservation of evidence;
- Quantification of the scale of infringement;
- Identification of the actual responsible parties;
- Proof of subjective malice.
In certain circumstances, these issues make it more difficult for rights holders to obtain high damages and to comprehensively and effectively curb repeated infringement.
Evidence Vanishes in an Instant, and Front-end Evidence Collection Has Limitations
The core feature of live-streaming sales is real-time transactions. Product displays, implicit comparisons with well-known brands, and misleading promotional language often appear only briefly during the live stream. To reduce the risk of being subject to platform supervision or accountability by rights holders, infringers may frequently change product links, switch sales stores and live-streaming accounts, or even move to other live-streaming rooms.
As a result, traces of infringement are often difficult to preserve over the long term. Traditional evidence collection methods such as screenshots and short video recordings usually capture only scattered fragments of a single live stream, which are insufficient to reconstruct the infringer’s continuous business activities or to present a full picture of the scale of its operations, thereby undoubtedly increasing the evidentiary burden on rights holders seeking high damages.
Organized but Dispersed Operations Make It Difficult to Identify Responsible Parties
Infringing acts in live-streaming e-commerce often involve multiple parties, including manufacturers, suppliers, store operators, streamers, and MCN agencies.
The boundaries of liability among these parties are not always clear. In practice, large-scale infringing operations may be carried out in the form of a coordinated network, with the actual controller simultaneously managing multiple live-streaming accounts, stores, and streamers, while externally packaging them as independent business entities.
Since the sales volume of a single store or account is often quite limited, the traditional model of “one store, one lawsuit” or “one account, one lawsuit” makes it difficult to identify the actual controlling party and is essentially incapable of shaking the entire operational system behind it, thereby increasing the difficulty of addressing infringing acts at their source.
Difficulty in Quantifying the Scale of Infringement and Insufficient Basis for Damages
In traditional e-commerce infringement cases, rights holders can often estimate the scale of infringement based on publicly available information such as product links, historical sales volumes, and user reviews.
By contrast, live-streaming e-commerce often lacks long-term stable product links, and front-end data cannot directly reflect key infringing facts such as cumulative sales volume and duration of operations, making it difficult to fully prove that the infringing acts are continuous, frequent, and implemented on a large scale.
Proof of long-term and continuous infringing acts usually requires long-term monitoring and the integration of fragmented front-end data by reference to common identifying features of the infringing acts; at the same time, it is often necessary to rely on platform back-end transaction data to screen for additional relevant infringing data.
Insufficient evidence will directly affect the determination of the amount of damages.
At the stage of filing a lawsuit, inadequate evidence may make it difficult for the plaintiff to claim a higher amount of damages, thereby affecting the level of court jurisdiction.
At trial, if relevant back-end data are not further obtained from the platform and the amount of damages is mainly determined based on front-end evidence, the final award may be relatively low, making it difficult to fully compensate the rights holder’s losses and effectively deter infringing acts.
Difficulty in Proving Subjective Malice and in Curbing Repeated Infringement
Many infringers, after being subject to complaints, administrative penalties, or lawsuits, often seek to evade liability by changing business entities, switching stores, or moving to other live-streaming rooms.
On the surface, such operations create the appearance of new business entities, but in essence, the same operating team continues to engage in the same infringing acts.
This tactic also exists in traditional e-commerce infringement, but the characteristics of live-streaming e-commerce make it more commonly used.
For rights holders, such concealed continuous infringement increases the difficulty of proving repeated infringement and subjective malice.
In addition, it may also pose practical obstacles for courts in determining whether the statutory conditions for punitive damages are satisfied.
Three-pronged Approach to Strengthen Enforcement Effectiveness
To address the above practical challenges, rights holders and their counsel often need to move beyond superficial evidence collection and single-point enforcement models.
Based on the author’s practical experience in handling multiple infringement disputes involving well-known fashion brands, an effective enforcement strategy should encompass three core measures:
- Penetrate the superficial structure of entities to identify the actual controller;
- Utilize common features of infringement to screen and aggregate infringing sales data;
- Build a complete chain of evidence to fully prove subjective malice.
This strategy proved effective in two independent trademark infringement civil cases handled by the author, helping rights holders obtain a judgment awarding the statutory maximum damages of RMB 5 million and another awarding punitive damages of RMB 10 million.
These two cases jointly confirm an enforcement path that is better aligned with the infringement patterns in the field of live-streaming e-commerce.
In-depth Investigation of Entities and Pursuit of Joint Liability
Large-scale live-streaming infringement usually adopts an operating model of “multiple accounts, multiple stores, single actual controller.” In form, multiple independent business entities each operate independently, but in reality the same team controls the entire infringing network’s supply, operations, and profit distribution.
Therefore, rights holders should move beyond the traditional enforcement model of suing only the nominal operators of individual sales stores or live-streaming accounts, and instead conduct cross-comparisons across multiple factual dimensions to uncover the concealed organizational connections between sales stores, live-streaming accounts, and the actual controller. Specific clues to focus on include:
- Supply chain;
- After-sales arrangements;
- Operator information;
- Product styles;
- Product markings;
- Naming rules for product links;
- Elements of the live-streaming room;
- Scripts for streamer sales pitches;
- Patterns in live-streaming time slots.
By systematically extracting and fixing common features among different infringing touchpoints, rights holders can prove the operational unity among multiple entities.
Such evidence can:
- Support factual findings of coordinated infringing acts;
- Assist in identifying the actual controller behind formally independent entities;
- Consolidate the evidentiary basis for claims of joint and several liability.
It also enables courts to see through the formal separation created by business registrations and to address practical issues such as dispersed liability and shell-changing infringement.
Collecting Infringing Sales Data to Quantify the Scale of Infringement
Since front-end evidence in live-streaming infringement cases is often fragmented, rights holders may consider adopting a layered evidence strategy by conducting real-time evidence collection, obtaining back-end data, and systematically screening relevant infringing data based on common features of infringement.
At the front-end evidence collection stage, rights holders may continuously monitor target live-streaming rooms and, based on a thorough analysis of infringing characteristics, strategically preserve recordings of different time periods to fix key infringing information during the live stream, including:
- Product displays, especially parts that reflect common features of infringement
- Layout of the live-streaming room
- Streamer’s appearance and sales pitches
- Infringing promotional statements
At the back-end evidence collection stage, rights holders may, in accordance with relevant provisions of the civil evidence rules, apply to the court to obtain registration information and operational data of the stores or accounts involved. After obtaining such data, they may then conduct batch identification and screening based on common features of infringement, thereby more fully reconstructing the pattern of long-term, high-frequency, and large-scale infringing acts by the infringer.
Even if back-end data cannot be obtained through the court, rights holders may still, based on identified common features of infringement, screen and aggregate infringing sales data reflected in front-end evidence from different stores and accounts.
This not only helps to refute the defendant’s defense that its acts constitute only isolated, incidental, or minor infringement, but also provides a more sufficient factual basis for the court to find serious infringing circumstances and to determine higher amounts of damages.
Building a Complete Chain of Evidence to Prove Malicious Infringement
Under Chinese law, the application of punitive damages requires not only that the infringing acts be serious in nature, but also that the infringer’s subjective malice be fully proven.
In one case handled by the author, the infringer had previously been subject to administrative penalties for similar infringing acts. Thereafter, in order to avoid further legal risks, the infringer deliberately concealed the identity of the actual controller and continued to engage in the same infringing activities through newly established companies that were nominally unrelated to the original infringer, as well as multiple newly registered live-streaming accounts and stores that appeared to be independent of one another.
In response, the litigation strategy in this case focused on a systematic comparison of infringing acts before and after the change of business entities and accounts.
Key factors included business models, elements of the live-streaming rooms, product markings, product style systems, supply channels, and the relationships among different operators.
On this basis, a complete chain of evidence was constructed to prove that, although the new and old entities were formally independent, they were in fact controlled by the same group, and that the infringing acts were continuous and repeated, and were deliberately designed to evade liability.
The court accepted this evidentiary framework, did not confine itself to the formal separation among entities, and instead, based on the substantive business relationships, found that the relevant acts constituted repeated infringement, deliberate evasion of liability, and large-scale malicious infringement, and held the actual controller personally jointly and severally liable.
On this basis, the court applied punitive damages and rendered a damages award in the eight-figure range.
In another case handled by the author, a complete chain of evidence was constructed to link multiple stores and related entities, and targeted screening and analysis were conducted based on front-end transaction data from different stores and accounts. This demonstrated that the infringement was extensive in scope, long in duration, large in transaction volume, and highly profitable.
On the basis of these facts, the court rendered a judgment awarding the statutory maximum amount of damages.
Key Takeaways for Rights Holders
The commercial structure of live-streaming e-commerce determines that its infringement patterns and enforcement logic differ from those of traditional shelf-based e-commerce.
Because infringing acts related to live-streaming e-commerce are typically immediate, dynamic, and concealed, simply relying on traditional enforcement models often fails to achieve satisfactory results.
For rights holders, effective enforcement in live-streaming scenarios usually requires strategies that are more systematic, penetrating, and data-driven.
Specifically, rights holders may identify actual controllers by analyzing infringing networks, use common features of infringement to screen and aggregate sales data to quantify the scale of infringement, and build a complete chain of evidence to prove that the infringing acts are malicious and continuous, thereby substantially increasing the likelihood of obtaining higher damages and curbing organized and repeated infringing acts at their source.
Recent cases further indicate that, within the existing legal framework, Chinese courts tend to conduct more penetrating substantive reviews of live-streaming infringement and to provide robust relief where evidence is sufficient.
In brief, achieving better outcomes in live-streaming infringement cases depends not on simply amassing more evidence, but on constructing a superior evidentiary structure and adopting more targeted enforcement strategies.
