The Research Of Trademark Infringement On Search Engine Marketing

The precondition of the affirmation of trademark infringement is to define whether ornot using a trademark as key words in Pay-Per-Click Services (PPC Services) offeredby search engine providers is inside the range of “the commercial uses of thetrademark”. If using a trademark as key words in PPC services is outside the range ofcommercial uses of the trademark, the Pre-sale Confusion Theory will be notapplicable in the case. Notably,“the commercial uses of the trademark” highlights theuses in commerce, thereby PPC Services, as a derivative of online search engine,advertising a trademark on internet by listing it on search results like ads shall bedefined as “the commercial uses of the trademark” rather than an internal use, whenwould-be customers see the results while using search.In terms of the affirmation of trademark infringement, the core function of atrademark is identifying the origination of a product, but the confusion damages thefunction so “the probability of the confusion” is the fair pleading standard of China’sjudicature recognition. However the challenge is that the “the probability of theconfusion”, as a traditional theory, is not able to cover the infringement cases relatedto search engines where the behaviors leading to confusion usually occur at pre-saleor pre-purchase stage. The actors usually attract customers to buy the products orservices by using the reputation of other trademarks. With reference to the Euro andAmerica’s relating cares, the author thinks that using “Pre-sale Confusion Theory” asthe pleading standard on the affirmation of trademark infringement on PPC Servicesis a global trend, which is changing the judging rules and making the judicial caseflow more efficient and unified, meanwhile, in respect of China’s judicial practice atthe moment, some appropriate and practical regulation on “Pre-sale ConfusionTheory” shall be made to improve the interest among the parties. In terms of the identification of trademark infringement liability, the PPC Servicebuyer (Advertiser) should undertake direct infringement liability because he canchoose key words, distribution time and location, etc. by himself via PPC Services,and also, the revenue from the ads totally goes to the PPC services buyer. Regardingthe PPC Service provider, compared to the PPC Service buyer, he should undertakeindirect infringement liability based on two assumptions as following-Firstly, theindirect infringement is affiliated to the direct infringement. Secondly, the providerhad subjective fault and was negligent in doing examination duties.