Trademark Infringement In Pay Per Click

This dissertation takes the working principle and operation procedure of Pay Per Click ("PPC") as key point and divides the PPC into the two parts of the selection of key words and the description of advertisement. It also tries to ascertain the existence of trademark infringement in PPC according to the theory of likelihood of confusion,the theory of initial interest confusion and the theory of dilution respectively, and discuss the responsibilities of the search engine service providers in the vision of accelerating the specialized legislation for trademark protection under the network circumstance.Chapterâ… gives an overview of PPC business. The result by PPC is brought out with operator intervention which differs from a result by natural search. In order to grab high attention, PPC customers prefer to pay for using the protected famous trademarks as their own keywords to trigger the advertisements and the search engine service providers take no action to intervene the possible infringement in consideration of the high profit in advertising. Such commercial operation mechanism would inevitably lead to the occurrence of series of disputes. Based on the theory of shelf placement, this Chapter focuses to find out the starting point theoretically of trademark infringement under the network environment by comparing the offline and online modes.Chapterâ…¡emphasizes on the constitutive requirements of the trademark infringement in PPC. Generally, Commercial use is consisted as the precondition of the trademark infringement. The use of trademark in the description of advertisement is surly considered as commercial use, whilst the use of trademark as keywords in PPC to trigger advertisement shall also be deemed as commercial use or not? To reply to this question, the relevant precedent cases in America provide us with different answers pros and cons. This Chapter tries to divide PPC into two parts, the selection of key words and the description of advertisement, for easier analysis of the existence of trademark infringement in PPC according to the theories of likelihood of confusion and the theory of initial interest confusion respectively, rather than arrive at a unilateral conclusion. Additionally, the necessity of using the theory of dilution to protect the trademarks of non-similar products will be further discussed.Following on the analysis of the possibilities of trademark infringement in PPC by Chapterâ…¡, this Chapterâ…¢turns to the distribution of responsibilities between the PPC customers and search engine service providers, and focuses to analyze the responsibility of the search engine service provider in the infringement and set out the relevant obligations and rules for them. The first and second sections of this Chapter launch a discussion of the possibility for the search engine service provider to establish relevant censorship in advance, and use the UGC rules for reference to set up a strict censorship mode. The third section analyzes the search engine service providers'role of contributory to the infringement whose subjective fault leads to the relevant indirect liability in the infringement.Chapterâ…£introduces of the precedent cases related to PPC in China and gives out the relevant countermeasures. This chapter elaborates the trademark infringement case between Google Adwords and Gang Yi Electronic Company, which reveals the entirely different attitudes in China's judicial practice from the different decisions made by the court of first instance and the appeal court. At present, there is no specialized legislation for network advertising in China, and there exists the blank of law with no proper applicable law in relation to PPC due to the absence of the theory of confusion and the ambiguous distinction between direct infringement and indirect infringement. In the perspective of the judicial practice, this dissertation aims to summarize the factors considered by the American judges in similar cases in the purpose of compensating for the lack of experience in China related to this field.