Research On The Infringement Of Using Others’ Trademark In Keyword Advertising

As a new emerging commercial marketing and promoting tool in the Age of Internet, Keyword Advertising, connecting to different parties’ interest, has enjoyed a great popularity and has given rise to numerous infringement disputes as well. Those disputes has lead to a lot of discussions, involving the liability of search engine provider which provide key word advertising services and purchaser of those services, which mainly focus on whether the search engine provider constitutes contributory trademark infringement, how to define the search engine provider’s duty of care and etc.According to the fundamental principles of Tort Law, the precondition of the establishment of search engine provider’s contributory infringement is the establishment of the purchaser’s trademark infringement. Therefore, this paper mainly analyzes whether the acts using others’ trademarks by the service purchaser constitute trademark infringement or unfair competition.Whereas the acts in the keyword advertising are complicated, the graphic below can make the main issues discussed in this paper more explicit.As mentioned above, the controversial issue discussed in this paper is that whether merely using other’s trademark as keyword but without putting the trademark in the title or description of the sponsored ads constitute trademark infringement or unfair competition.Based on the features of the Internet environment, this paper analyzes the objective requirement of trademark use provided by China Trademark Law and draws a reasonable conclusion that using other’s trademark as keyword constitutes trademark use; however this kind of acts does not cause likelihood of confusion, which means it does not constitute trademark infringement. On the other hand, according to the purpose of China Anti-unfair Competition Law and the construction of unfair competition behavior, this paper argues that merely using other’s trademark as keyword is a kind of fair competition.The framework and structure of this paper is as below:Firstly, this paper briefly introduces the keyword ad industry and its business model, which is the fundamental of other legal analysis and discussion. Based on a lot of relevant cases and available literature, this paper presents an overall picture of the disputes arising from usage of other’s trademark in keyword ads.Then, the precondition of trademark infringement is trademark use. The issues of trademark use include its position in the Trademark infringement judgment, the reasonable judgment standard and the necessity of its existence in trademark infringement judgment, which has caused heated discussions. The trademark use shall be restore to its original meanings and distinguished from the judgment of likelihood of confusion. The trademark use refers to using trademarks by a way of indicating products or services’ sources in commercial activities. There shall be objective criterions judging whether a kind of usage of trademark constitutes trademark use provided by China Trademark Law. On this basis, the act using others’ trademarks only as the keywords does not constitute trademark use.Whether there is a likelihood of confusion shall be considered next. Based on the particularity of Internet environment, the initial interest confusion shall be applied to relevant cases with the reasonable standards. However, the act using others’ trademarks as keywords promote competition in the relevant industry instead of leading to likelihood confusion. As a result, the trademark infringement conclusion cannot be drawn.Finally, this paper analyzes relevant cases and summarizes reasonable analytical way to discuss whether a particular behavior constitutes unfair competition. This paper believes that using other’s trademark as keyword is a kind of fair competition allowed by China Anti-unfair Competition Law.