The Research On The Trademark Infringement Of Search Engine

As the fast development of the Internet technology, we enter in the real information era. During the combination of the commodity economy and the Internet, the Property Law develops rapidly and has the profound social influence. The trademarks become more and more important because of its function of recognition and recommendation in the Internet. In the fierce competition, merchants gradually realize the importance of brand and reputation. When they constantly improve their products’ quality, they pay more and more attention to protect their reputation. So the awareness of protecting their trademarks becomes stronger. People from focusing on their own tangible property instead pay more attention to the protection of their intangible assets. The Trademark Infringement is not the exclusive consequence of the traditional area, because it has extended to the Internet. The forms of advertisement are not confined to the traditional form, and now there is Internet advertisement. The Trademark becomes the key word of the search engine. So, the problem of the Internet Trademark Infringement, especially the search engine trademark infringement raises people’s more attention.The Property Law is not the perfect like any other department law. The new forms of the trademark infringement have the problem of application under the current laws and regulations. The traditional Trademark Law seems powerless when it faces the new Internet problem. This paper tries to use the traditional Trademark Law as the frame and combine with the new theory and the case of the world to research the problem of the search engine trademark infringement. There are four parts in this paper:The first part is to summarize the problems of search engine trademark infringement. In the process of confirming the search engine trademark infringement, there are three problems.(1) How to confirm the search engine trademark infringement.(2) Whether the search engine trademark is the tort behavior of the Trademark Law and whether the use of the trademark is the requirement of the confirmation of the trademark infringement.(3) The liability of the search engine trademark infringement.The second part is the analysis of the problems caused by the search engine advertisement. First to introduce the key elements of confirming the trademark infringement in the traditional Trademark Law, including usage behavior and the possibility of confusion. The theory of confusion is the core. Second to combine with the related case to discuss the confirmation of the trademark usage and the possibility of the confusion in the search engine trademark behavior.The third section discusses search engine trademark liability, which divided into two parts: direct infringement and indirect infringement. Search engine service provider may constitute contributory infringement wherein advertisers direct infringement. In the search of the infringement of engine service providers, the duty of care should be considered in the search engine service provider knows or should know of subjective states, as well as whether to provide help for advertisers to conduct an objective, combined with the red flag principle in the judgment.The fourth part is especially against our country. The current status of the search engine advertising market and related infringement cases are discussed briefly summarized, and then conclude the insufficient of the relevant provisions of the Trademark Law. The imperfect of legislation, the lack of legal basis in practice, and the unclear and fuzzy of provisions of likelihood of confusion, led judges too much discretion, etc. And put forward suggestions to improve our legislation. Clear search engine indirect trademark infringement form; definite the duty of care of the search engine service providers; Clear the standard of "knowingly" and "should have known" of the search engine service provider; Perfection confuse judgment standards. Hope that China’s online advertising market will in a prosperity, stability and orderly development.