A Study Of Keyword Advertisements And Trade Mark Infringement

Keyword advertisement has been advanced since it was invented by American famous search engine Overture Inc. in the year of 1994.Nevertheless, a set of lawsuit, especially the trade mark infringement had been raised around the world after it was taken advantage by Google Inc. in 2002, which has extremely hindered the development of this new kind of commercial model and disturb the order of our advertising industry. This thesis outlines the types of trade mark infringement in keyword advertisements and opinions of relevant judgments in America, European Union and China as well as the articles and law reports. And then rectify the wrong opinions in Chinese legal researchers and judges and propose some creative suggestions. This thesis argues that using trademark as keyword to trigger advertisements is useful for consumers to find those goods in good quality but cost cheap on one side and lowers the barrier of market entry as well as facilitates the free flow of international trade and commerce in a way that a state-based trade policy cannot on the other. This kind of use is internal use and not visible for consumers, which does not violate trade mark law. Also, there is no free-riding, so it does not violate Competition Law either. However, there are part of advertisers take advantage of this kind of service wrongly, like using others'trade mark on the text of their advertisements or their website pages, which is likely to cause confusion. This has made the trade mark owners suffer from huge lost. What is worse, the search engines did not categorized as advertising agents or advertising publishers by judges in China or even in America and European Union. This thesis argue firstly that search engines should be categorized as advertising agents or advertising publishers on one hand but make some changes in advertisement examining system in order to lower the care of duty of search engines on the other. Secondly, improve the provision of'trade mark use'in the article 3 of Implementing Regulations of the Trade Mark Law of the People's Republic of China and remedy the insufficient of trade mark infringement test. Last but not least, enact the Implementing Regulations of the Tort Law and definite the'know'in Article 36 of Tort Law as'actual knowledge'or'an awareness or understanding of a fact or circumstance',excluding'should know'. Also, the procedure of notice should be not considered as necessary before the victim file a lawsuit. If the network service provider knows or has reason to know others are infringing a civil right or interest of another person through its network services, and fails to take necessary measures, it shall be jointly and severally liable for any additional harm with the network user even though it is not notified before.