The Judgment Of The Trademark Infringement In Keywords Advertising

Keyword Advertising has been gone through multiple criticisms and it is usually concentrated on three aspects:the trademark infringement results from the selection and abuse of the keywords, the malicious infringement caused by willful clicks and the integrity disputes due to the disclosure of false information. Among which, the trademark infringement will be the focus of this article and it shall be discussed from three sections.The first section:the outline of the keyword advertising disputes. In this section, some basic definitions involved in the infringement shall be limited and analyzed, which may cover the definition and history of the keyword advertising, the tripartite subject in the disputes (the search engine, the purchaser of the keyword and the owner of the trademark), the discussion on variety of the arguments and the conflict and balance of the interests among different subjects.The second section:the analysis of the infringement comes up in keyword advertising upon trademark. This section shall be the emphasis hereunder. In this part, based on existing laws and cases of our country, we will discuss the elements and characteristics of the infringement by referring to some established regulations and cases from foreign countries, from which, we concluded two most frequently used elements-the trademark use and likelihood of confusion. As whether this kind of action can constitute trademark infringement or not is still under debate, this article will also discuss some other pertinent factors for reference other than those two basic elements, and talk about the justifications as well to make sure specific cases can be judged under concrete analysis. Based on the above discussion, a further dissection shall take place on the behavior of the search engine and the keyword purchaser.The third section:the assignment of the responsibility in keyword advertising. This section shall list some common exemptions where the infringement can be confirmed, and talk about their preconditions individually, in which the discussion shall be focused on the principle of safe harbors and the principle of technological neutrality, besides, relative articles stipulated in the trademark law shall also be discussed. Besides, the section will discuss the assignment of the responsibility in keyword advertising if the foresaid exemption cannot be applied to. For example, whether there exists indirect infringement liability in Chinese IP laws, do those two infringers shall take the responsibility jointly or proportionally, which kind of liability fixation doctrine shall be applied to inhere, etc.In the end, considering the keyword advertisement does benefit consumers to some extend and its tendency of development cannot be dismissed, we will bring out some advice to the subjects involved here and hope to give some reference to them during their afterwards practice.