The Research About The Trademark Infringement Liability Of Keyword Advertising

Baidu company and google company are committed to the service of the Internet searchengine. They are an important part of the Internet industry, its profit is known as keywordadvertising, relying on a network extension model. While keyword advertising model bringhuge profits for the search engine service providers, it also caused a lot of legal disputes.Some companies will set up some keywords,and even use other well-known brands,especially a competitor’s trademark as keywords,in order to make the rankings more forward.The primary issue for determination in each of these cases is whether the sale of keywordswhich are the trade marks of others for the purpose of online keyword advertising constitutesan infringing use of trade marks.This article adopts the case analysis to discuss the keyword advertising trademarkinfringement question, expecting to solve the following issues through analysis analysis: Inthe fact of the linked site constitutes trademark infringement and unfair competition behavior,Whether network service providers as a search engine constitutes trademark infringement, andwhat responsibility they should undertake.The full text is divided into five parts:The first part: description of the status of the keyword advertising disputes. In the Baiducase, the court held that Baidu’s conduct did not constitute direct infringement, and shall bearjoint tort liability; in the Google case, the court held that the search engine provider’s conductdid not constitute trademark use.The second part: to discuss whether the sale of keywords which are the trade marks ofothers for the purpose of online keyword advertising constitutes an infringing use oftrademark."Trademark use" is a necessary element of trademark infringement;in the Googlecase, the court held that Google’s conduct was not a behavior of trademark use, because thebehavior of the use of search engine providers is not indicate the source of its own goods orservices.The third part: joint tort theory applied by domestic courts in the trial of Baidu case, theCourt’s approach is not very reasonable, as applicable to joint tort theory in trademarkinfringement cases on keywords will cause some problems,such as the element does notmatch, the program is unclear,and the responsibility unknown.The fourth part: the indirect right infringement is opposite in the direct right infringementsays, it can effectively solve that problems of inconsistent elements, unclear program, unknown responsibility. Indirect infringement consists of three parts:the existence of directinfringement, indirect infringer provides helping behavior to the direct infringer,indirectinfringer has subjective fault.The fifth part: a brief introduction of the defenses put forward by the search engineproviders.