Determination Of Search Engines’ Fault In Keyword Advertising

With the popularity and development of internet,the value of key words advertising has been known by people. It plays more and more important role in rural strategy of marketing and advertising of enterprises. Although key words advertising brings a great many options for the consumers, it also derives many trademark infringement problems. In the business pattern of key words advertising, the search engines sell key words to make its own profit. Meanwhile, some enterprises use their competitors’ trademark as their adwords, which triggers a number of trademark infringement cases. The brand owners always sue the enterprises with the search engines to the court. The legal provisions are not clear enough, which make confusion to the courts of its legal application. In this paper, the main problem is to discuss whether search engines constitute direct trademark infringement and their duty of care in the key words advertising.There are three chapters in this paper. The first chapter mainly introduce the business pattern and present situation of key words advertising. Because the key words advertising has lower price and broader range than that in the traditional media, so people give more and more attention to it. Using others’ trademark as their adwords helps broader the channel of publicity, but it will have some problems. In the judicial practice, courts have differences in many things, such as the nature of adwords, the duty of care of search engines.The second chapter is to analyze that the search engines’ sale of adwords can’t constitute direct trademark infringement. I analyze the judgments of the European and American courts. In their opinion, trademark infringement should be made up by two factors,one is commercial use and one is the damage to the function of the trademark. I will also discuss the problem of confusion in the key words advertising.The third chapter mainly analyses whether the search engines will constitute indirect infringement and how the identity the duty of care of them. In this part, the thesis will particularly identify search engines’ duty of care in the key words advertising. Because the subjective fault is hard to estimate by others, so we should judge it by the objective ways. Combined with our nation’s legislative practice, we should use the “rational person standard”. According to the specific cases, the courts can judge search engine service providers’ fault under the rule of “Red Flag standards” and “notice and remove”.