Research On The Trademark Infringement Of Keyword Advertising

As an effective method to promote the products and the popularity of theenterprises, advertisement has always been one of the major strategies employed bythose businessmen. While the development of technology forced the appearance ofmany novel business models, Keyword Advertisement Service (KAS), as one of thenewborn models, changed the way to advertise. The advantages it has such asconvenience, low-price and efficiency are attracted to many advertisers. Consumersare easier to find the information they are seeking for meanwhile the search engineoperators are benefit from such service. Just like other new things, win-win couldraise side effect, soon, the problem of trademark infringement emerged in KAS.Followed with United States and Europe, similar cases appeared in China,accompanied with disputes. So we have to figure out a way to resolve thisuntraditional problem. By referring to the cases, articles published domestic andoverseas, considering the theories of trademark law and tort law, this paper discussedthe issues mentioned above. The paper includes following five chapters:In Chapter one, the author introduces the legal issues on trademark related tokeyword advertising arising from cases in United States and China. After a briefintroduction of keyword advertising, the author divides the process of keywordadvertising service into two stages: selection stage and display stage, furthermore, thedisplay stage has been divided into three use forms. By citing the relevant cases inUnited States and China, the author extracts the problems the court may face whendetermining such cases.In Chapter two, the author discusses the issues on trademark infringement inkeyword advertising. By analyzing the component elements of trademark infringement and determinations by US courts on such cases, the author lays emphasison the analysis of whether the use of other’s trademark as a trigger of keywordadvertisement will constitute trademark infringement.In Chapter four, the author expounds the possible liability the search engineoperator may undertake in such cases. Firstly, the author revealed the nature ofkeyword advertisement, then analyzed whether the search engine operator shall beliable for contributory infringement focusing on the duty of care the search engineoperator may have by citing the cases decided by Chinese courts.In Chapter four, the author makes reasonable suggestions regarding the currentlegislation in trademark, including the establishment of likelihood of confusion theoryand trademark indirect infringement. In addition, the author gives some advice tosearch engine operator and advertiser on avoiding and lowering the legal risk.