Issues On The Trademark Infringement Of Keywords Advertising

As the Internet increasingly is utilized by consumers to buy and research for the products and services, more and more advertisers use the"keyword advertising"providing with sponsored link advertisements on Internet search engines. This new type of internet advertising using another's trademark will intensify significant legal debate on whether there are trademark infringements.For a registered mark, infringement exists, pursuant to the trademark law, where: (a) the defendant has"used"the valid trademark in commerce without permission; and (b) the defendant's use is likely to cause confusion regarding the source or origin of the goods or services. So far, of the keyword advertising cases, the most often challenged and discussed element has been whether the defendant's activities constitute a"use"of the trademark under the trademark law. The next (and perhaps final) battleground for trademark infringement claims based on keyword advertising is the element of confusion. In traditional trademark infringement cases, assessing"likelihood of confusion"is a fact-intensive inquiry involving. But traditional infringement analysis, however, appears ill-fitted to keyword advertising, primarily because most cases do not involve allegations that consumers were actually confused as to who they were buying a product from or the nature/origin of the product purchased. The"initial interest"or"pre-sale"confusion doctrine has now reared its head in the context of keyword advertising.This paper focuses on the two elements and concludes that merely using the trademark as keyword to trigger ads do not constitutes the trademark infringement, for it doesn't meet the doctrine of"trademark use". Infringement maybe exists when the trademark is used in sponsored link and website if it causes confusion. We should analyze this issue under the likelihood of confusion doctrine rather than the initial interest confusion doctrine. This paper also analyzes the situation under which the advertisers and search engines potentially face liability for direct trademark infringement and contributory trademark infringement.