Determination Of Search Engines’ Fault In Keyword Advertising

Now keyword advertising produces substantial revenues for searchengines, and brings advertisers a lot of business opportunities.Meanwhile, there have been a number of trademark infringement casesbrought by brand owners. Search engines’ recommendation and sale oftrademarks to its advertising customers are not trademark use， so couldnot constitute direct trademark infringement. Given that trademark useis required for direct trademark infringement to occur, search engines’bear contributory liability for infringement. Search engines’contributory liability in tort law is based on fault. So how to determinefault of the search engines which provide keyword advertising servicesis worthy of further exploration.Part I of this Note outlines how search engines use keywords togenerate online advertisements and a series of disputes triggered by thisbusiness model, and then analyzes several typical cases in China whichdo have disagreements between different courts. Courts in China could notreach an agreement on whether search engines are required to review thecontent of the keyword advertisements in accordance with China’ sAdvertising Law. The author indicates that search engines have no legal obligations to review the content of the keyword advertisements. Whetherthe behaviors of search engines are negligent should be judged by theviolation of duty of care.Part II further indicates why search engines have no legal obligationsto review the content of the keyword advertisements. The author thinksthat although keyword advertisements have the nature of advertising,search engines should not be considered as advertising operators whichshall examine the content of advertisements while undertaking advertisingbusiness. Though search engines have no legal obligations to review thecontent of the keyword advertisements, they still should bear reasonableduty of care.Part III argues that how to determine fault of the search engines byanalyzing the violation of duty of care. Besides following the rules ofnegligence, it is very important to consider the facts of cases. It isgroundless to let search engines bear higher degree of duty of care onlybecause of the profits gained by keyword advertising services and thepopularity of the trademarks. Search engines should take fault liability,only if trademark owners can bring evidence to show search engines shouldknow the existence of infringing information but do not take necessarymeasures.Part IIII is the conclusion, according to analysis of the previousthree chapters, the author sums up the issue of how to determine faultof the search engines under the circumstance of keyword advertising.