Research On The Trademark Infringement Liability Of Advertisers In Pay Per Click

Pay Per Click(PPC) is based on the search engine technology. Its primary purpose is to make the advertiser’s website link appear in the front of the search results page when the keyword that the user inputs is consistent with the selected words by the advertiser. The operation of PPC can be summarized as the following three steps. Firstly, the advertisers should choose the specific words as keywords. Secondly, the advertisers and the search engine providers should reach an agreement on PPC and the advertisers should pay the promotion expenses to the search engine providers according to certain standard. Finally, when the user selects the advertiser’s keywords for search, the advertiser’s link and associated description would appear in the top, right or other significant parts of the search page. The above content is generally appeared in a specific color as the background or with text in a particular stated, and the content is different from the natural search results obtained by the conventional operation.In order to gain more business opportunities, some advertisers will choose another person’s trademark as keywords in PPC which results in a series of legal disputes. Some of the trademark owners decide to sue the advertisers and the search engine providers together, and some of the trademark owners decide to sue the advertisers or search engine providers respectively. Because of the uniqueness and novelty of the trademark infringement cases of PPC advertisers and the differences in the understanding of legal norms, there are great differences in the thoughts and the decisions by Chinese courts. There is a great dispute in PPC advertisers’ liability of trademark infringement. For example, what’s the legal character of PPC service; the advertisers choose another person’s trademark as keyword in PPC shall be deemed as trademark use or not; the initial interest confusion theory shall become the confusion standard or not, and so on. This paper will focus on the analysis of the above issues and the paper is divided into four chapters.Chapter one explains the legal character of PPC by clarifying the concept and the operation mode of PPC. In view of the current theoretical and judicial circles, the legal character of PPC is controversial, resulting in the dispute that PPC advertisers’ liability of trademark infringement is still unknown. If the legal character of PPC is clear, in other words, the legal character of PPC is the advertisement or the technology, to explore the advertisers to choose the trademarks of others for keywords to buy PPC service is an infringement of trademark right is of great significance, it would have great significance to study whether the main behavior of the advertisers is infringing the trademark right or not. Then through the analysis and comparison of the judgment the trademark infringement cases of PPC advertisers, the legal disputes involved in the case of the same type are summed up.Chapter two will focus on the analysis of the deep reason of PPC advertisers’ liability of trademark infringement are identified a large difference. This paper mainly summarizes the following two reasons. Firstly, the specific provisions of the "trademark use" in the “Trademark Law” is not separated in the definition of “use” and in the way to “use”, that results in the judges are more concerned about the use of the trademark in judicial practice while ignoring the "trademark use" is “the behavior is used to identify the source of goods”. Secondly, because there is a lack of legislation to identify the likelihood of confusion, including the identified factors of the likelihood of confusion are uncertainty and the initial interest confusion theory becoming the standard of the likelihood of confusion is controversial, there is great difficulty in judging the likelihood of confusion.In Chapter three, the author learns and analyses the foreign judicial practice, and concludes the determined standards of trademark infringement. The opinions and judgments in the foreign countries’ trial of PPC trademark infringement cases have certain reference significance for our country’s theoretical research and trial practice, especially the judgments the US Court and the European Court in the same type of case.Chapter four analyses the advertiser’s behaviors shall infringe the trademark rights or be unfair competition acts under different conditions. Firstly, judicial application is based on defining the standard of PPC advertisers of trademark infringement. Then this paper analyses the different type of PPC advertiser behavior and tries to provide comprehensive thoughts in the relevant judicial trial. Furthermore, the paper puts forward to supply the regulation of PPC advertisers’ bidding behavior by "competition law". In judicial practice, if the advertisers’ subjective malice is very obvious and they do cause pecuniary loss to the trademark owners, their behavior should be identified as unfair competition.