Analysis On The Use Of Other’s Trademarks In Bidding Rank Service Of Search Engine

At the present days bearing the name of “Attention Economy”, the attention fromthe internet may decide the death or existence of a website. As a requisite of everycyber citizen, search engine provide each website with a chance to be presentedbefore many cyber citizens. However, considering there may be too many results ofeach search, some websites which have to be listed at back will attract few or even nobrowsers. Search engine providers have took notice of this business chance, andcommenced bidding rank service, selling search engine keywords to clients andpresenting clients’ website link with priority at the search result web pages. Althoughthis new kind of business mode introduces a more convenient way for clients topopularize their products, it causes many disputes, especially trademark infringementissues when using other’s trademark as the search engine keyword in bidding rank.The client may list other’s trademark as the search engine keywords so that when onesearches for the trademark, the website of the client who has attended the biddingrank will be presented on the top of searching results, and there will be advertisingwords to introduce the website. By this way, the searcher may make mistake and thinkthis website link is the one owned by or related to the trademark owner; even if thesearcher is not misled, this kind of act is an unfair use of the goodwill contained inother’s trademarks.There have occurred several trademark infringement cases arising out of biddingrank. In the judgments made by different courts, no agreements are achieved on thenature of bidding rank, whether constituting confusion, whether constitutingtrademark infringement or unfair competition, whether search engine provider has theduty of examining the bidding rank keywords.The authors examined and checked theory of trademark law and some judgmentsof the similar cases, and made the conclusion that also bidding rank is provided by thesearch engine providers, but it has different nature from traditional search, because itchanged the rank of searching results artificially for the purposes of popularizing, so it should be deemed as a kind of advertisement and search engine provider should havethe responsibility of an advertisement publisher. The use of other’s trademark as akeyword can be divided into the following three conditions: the first is only to use thetrademark as the keyword link, but not in the searching result page or the client’s ownwebsite; the second is to use it as the keyword link and in the searching result page,but not in the clients’ own website; the last is not only in the keyword link, but also inthe searching result page and the clients’ own website. In the author’s opinion, the lastcondition can be easily resolved by the traditional trademark confusion theory, but forthe second and the first condition, they may constitute sponsorship confusion; if nosponsorship confusion is constituted, the clients may also breach the anti-unfaircompetition law. As for the search engine providers, they publish advertisements tothe public, and they have the technology to examine the keywords submitted by theclients, so they should have the duty of examination. If remiss in obligation andcauses damages, they should be responsible for the indirect infringement.