The Determination Of Trademark Use In Keyword Advertising Cases

Based on the search engine, keyword advertising is a form of onlineadvertisement. Its unique advantages bring huge brand benefit to enterprises, but alsotrigger a series of legal issues. Especially the courts and scholars at home and abroadtake different stances on the qualitative problems of search engine providers’ andadvertisers’ conducts. According to the theoretical definition of trademark use, thispaper discusses the qualitative problems of search engine providers’ and advertisers’conducts, which are whether their practices constitute trademark use. The paper isdivided into six parts:The introduction section describes the background of the keyword advertisingcases and the debate over the nature of the conducts. Besides the paper summarizesrelated research situation at home and abroad.The first section presents the issues discussed in the paper. It introduces howkeyword advertising works, and it sums up different viewpoints of the qualitativeproblems of search engine providers’ and advertisers’ conducts.The second section mainly studies the theoretical definition of trademark use.The United States believes that trademark use consists of two factors:(1) use incommerce; and (2) in connection with any goods or services. EU considers there arethree elements:(1) use in the course of trade;(2) in relation to goods or services; and(3) use is liable to have an adverse effect on the functions of the trade mark. In Chinawe also put forward three requirements to trademark use from the nature, manner andpurpose of use. In the summary, this paper compares the differences to determine thecore requirements of trademark use.The third section analyses the nature of search engine providers’ behaviors. Bydrawing on the judgment reason of the Court in the United States and the opinions ofthe European Court on Louis Vitton cases, the paper holds that the acts of the searchengine providers are not in line with the elements of trademark use, so they are notusing the trademark.The fourth section determines the nature of advertisers’ conduct. By discussingthe judgment on the advertisers of Louis Vitton cases and the views of our courts and scholars, this paper concludes that the qualitative problems of advertisers’ conductslies in the question if the keyword used by advertisers identifies the source andproducers, and the answer to that question lies in the fact that how consumers actuallyunderstand the result page.The conclusion section summarizes the central idea of the article.