Trademark Use In The Internet Advertising

Trademark is a special kind of information carrier, which means the information of the goods or services from where and its reputation. Legitimate trademark use can delivery true information to the commodity market, so that consumers can identify and distinguish the source of the goods or services, and it would make the trademark’s information retrieval function and reduce the cost of information searching. All of this obtains a win-win chance between market operators and related consumers. The increasing development of Internet technology makes the rise and prosperity of e-commerce, so that more business transactions occur on the Internet platform. Market operators not only copy the traditional commercial advertising to the Internet platform to increase trade opportunities, but also set up relatively new advertisings, such as burying trademark vocabularies in the code of website meta tags, making keyword advertising by paying search engine money etc. The main characteristic of these new ads is the use of trademarks in more subtle ways so that consumers would not perceive the use of trademarks in normal situation; behavior of using this hidden trademark is called "internal use" in some cases. Whether this "internal use" and the behavior of search engine belong to trademark use in the meaning of the Trademark Law, this paper tries to make appropriate conclusions on the base of the America and European court cases and the theory of trademark semiotics.The courts of our country handle few lawsuits about trademark use in Internet advertising, but this paper still thinks it’s necessary to review and analysis the foreign cases and relevant theories. On the one hand it will integrate the trademark use theory, on the other hand the Internet and e-commerce is becoming more and more important and the relevant cases in our country will appear, so it has a certain realistic significance.There is the conflict between the absolute freedom thought of Internet information and the use of trademark information. Also, the Internet produces a specific influence on the subject, the domain and the way of trademark use. Internet advertising is a kind of business advertisings in which the market operators use Internet technology and platform as the media and form to introduce and promote their goods or services. Combining with the USA and EU court cases, the author makes specific introduction about the trademark use in the most common Internet ads such as meta-tags, keyword advertising, and web links, and points out the different views of the USA and EU courts and analyzes this conflict.In many cases, infringers embed the trademark information in the website codes. Because consumers are difficult to perceive such use of trademark, so the infringers call it "internal use" and treat it as a defense cause. This paper thinks that the market operator’s setting the mark vocabulary in the Internet Advertisings has constituted trademark use. And after making specific analysis on the "internal use" behavior, the author identifies "internal use" essentially same as the trademark use behaviors. From the micro level of semiotics, this paper points out the trademark use in the Internet and the use in the traditional commercial mode are essentially the same. Finally, considering on the trademark’s essence function, the author thinks that search engine’s behavior does not constitute as the use of trademark. And the paper says when we are in the face of all kinds of new things, making the reasonable explanation to the trademark use theory and other legal norm would make the disputes resolved effectively and in due course.