Research On Constituent Elements Of Trademark Infringement In The Internet

Keywords PPC (Pay-Per-Click) in search engine is the hot issue in trademark law. Thereason why it is highly noticed is that the composition of traditional trademark infringementliability cannot meet the actual need to resolve Internet trademark infringement disputes. Astrademark exists in cyberspace independently out of products, defining the scope of the rightsof the trademark in a positive way and then judging whether the infringement is established,that is undoubtedly difficult. In order to solve practical problems, we need more qualitativeanalysis of the elements of trademark infringement liability. With regard to "use" elements,both academic papers and the administration of justice in China prefer to support “the use inthe trademark sense”. On the basis of discussing the rise of and controversy of the "trademarkuse" in the United States, this article proves that the theory does not fit our judicial practice.On the one hand, blindly adopting the theory will lead to the logic cycle of the argumentabout the "use" and "confusion". On the other hand, identifying trademark infringementshould not be only limited to the use of behavior based on the use of meaning, and it shouldalso include the use of behavior based on the destruction of meaning. With regard to the"confusion" elements, our courts have been interested in confusion infringement judgment,however, the reasonable protection of trademarks right does not depend on the breadth of itsscope of protection, but on whether the confusion can be defined as property loss of rightsholders on a reasonable presumption. In other words, confusion is just preliminary evidenceof the damage of the property of the trademark owner. Only the confusion in sales can provethat the property loss suffered by the right holder is inevitable or highly probable convincingly,thus the holder can obtain compensation. Although PPC behavior may causes the loss ofpotential trading opportunities, this loss is not necessary to obtain benefits. In consideration oftort damage compensation and tort damage prevention coexist in our infringement mode,though the PPC behavior had not resulted in the sale confusion, but indeed separates thesignificant relationship between enterprises, trademark and commodities, and affects therealization of the original function of trademark law, therefore this kind of behavior shall beartort liability. Consequently,"confusion" element should be divided in different types of civilliability.This paper is mainly divided into four parts: Part I: Introduction of the principles of search engine and the operation of the keywordbidding process. It shows the current chaos of PPC services by some Image examples.Part II: Comparative analysis of Chinese and foreign jurisprudence. By analyzing somerepresentative cases in Chinese and foreign countries, such as the Volkswagen case,“babaike”case, Google case, it reflects that judgments in our country is slightly inadequate and thedemonstration of the key element is somewhat subjective.Part III: The use of the trademark.It mainly includes the reason of conceptual confusionof the trademark use, the background and focus of the controversy of the trademark use, thedeficiency of trademark use standard in China, as well as the establishment of use standard inbusiness.Part IV: Confusion. By analysis of the damage of trademarks, it concludes that confusionis the only original presumption of the damage of the owner’s property, and only confusion insales can cause compensation liability. The potential loss of trading opportunities due to PPCbehavior can not prove that the loss of property interests is obtained by the right holdersinevitablely, but the behavior should be prohibited because it separates the contact oftrademark distinctiveness and trademark. Therefore, in the context of "wide infringement",confusion should be the divided depending on the type of civil liability.