On Determination Of The Trademark Infringement In Pay Per Click

The wide use of Internet has brought us with the age of information explosion. Search engine has become an important tool for on-line information retrieval. Being a new business model explored by search providers, Pay Per Click (PPC) guarantees the sustainable development of search engine service and provides an excellent choice for merchandising goods as well as services. However, using a registered trademark as the keyword without permission leads to many infringement dissensions. This paper is divided into three parts:introduction, the main body and conclusion. The main body contains six chapters.In the first chapter, the author discussed the mode of operation of the PPC, subdivided the source of the PPC’s promotion links, and draw forth the disputes resulted from using a trade mark without permission. The author concluded that the interested parties consist of the search service provider and the PPC services buyer.In the second chapter, the author discussed the elements required to determine whether or not a PPC service buyer’s behavior could form direct infringement on the right of trade mark, including the determination of use in commerce and the confusion of consumers. Furthermore, the author also discussed the comparative advertising by analyzing the defense against direct infringement on trademarks.In the third chapter, the author propounded the idea that the legal fact in PPC trademark direct infringement should be the promotion links in search results. Particularly, the author insisted that "likelihood of confusion" should be regarded as the basic judgment. Additionally, whether the distinctiveness of trademark be damaged should be considered as a requisite. Therefore, the so-called trademark infringement "initial interest confusion" in essence, still belongs to the most basic "likelihood of confusion". This is only a fact that reflects the existence of promotion links, which should not be regarded as the judgment criterion of PPC infringement. Besides, it’s necessary to establish the order for trademark competition use aiming at regulating comparative advertising. Thanks to our ban on a clear comparative advertising, the author proposed the way by which the enterprise can evade the corresponding risk.In the fourth chapter, the author discussed from the legislative and judicial point of view, that the judgment criteria for the search service provider’s contributory infringement liability should including prior review duty and duty of care. PPC belongs to some kind of advertisement service which need the performance the prior review duty, but the regulator authority can’t keep watch on this, so it will lead to administrative omission. This duty of care contains action as well as omission.In the fifth chapter, the author analyzed the judicial precedents and the objective reality to induce the conclusion that the search service provider’s obligation of prior review should be exempted. The content of duty of care should be executed in a rational positive way. The author also explored the exemption rules under PPC condition.In the sixth chapter, the author agreed that trademark law belongs to special law, compared with Anti-unfair law as general law. The special law is superior to general law.