The Research On Trademark Infringement Liability Of Search Engine Operators In Keyword Advertising

With the rapid development of Internet technology anddriven by interests,network service operators start looking for new profit models.Therefore,the keyword advertising bidding ranking technology arises at the historic moment.This kind of network service provides a cheaper and more effective promotion mode than traditional marketing for the vast number of small and medium-sized enterprises.But it also caused a lot of disputes,the most typical one is caused by trademark infringement disputes.Using keyword advertising bidding ranking service,enterprise will choose other people's trademarks of high utilization rate as keywords to make their own website links to be searched more easily.This may infringe the trademark exclusive rights of others.Because of the complexity of the network infringement and concealment,It is difficult for trademark owners to seek relief from advertisers who infringe their trademark rights.Then trademark owners often choose to turn to search engine operators to seek compensation.Due to Legislative deficiencies and theoretical differences,the court can't form a unified understanding of the problem on search engine operators' responsibility in the trial.Therefore,the problem to be solved is that what kind of responsibility should be taken by search engine operators In cases involving the infringement of trademark by keywords advertising? The U.S.courts find if the operator is suitable to bear the responsibility of direct infringement on trademark by judging whether the use of the trademark by the search engine operator belongs to the sense of "use as trademark" in trademark law and whether it will cause consumer confusion.However,on one hand,the experience from USA is not suitable for judicial practice in China.on another hand,as to the "trademark use" confirmation,if the search engine operators involved in the key words selecting directly,it is very likely that it will constitute the use as trademark,which constitutes a trademark infringement liability.In cases of identifying the responsibility of search engine operators,the European courts will decide whether the operatorsconstitute trademark infringement directly just like American courts.But the difference is that when finding that the search engine does not constitute trademark infringement,the courts tend to decide that the search engine operators constitute tort liability.The experience of layered review on search engine operators from the EU courts is worth using for reference.Facing this kind of cases,our courts share the similar idea with the EU courts on Identification of the infringement liability of search engine operators.But in previous judicial trial,there are much problems.For instance,the responsibility confirmation of search engine operators is not accurate,the indentity definition of search engine operators is inconsistent and the review obligation of search engine operators is not clear.In confirmation of the responsibility of search engine operators in keyword advertising bidding ranking,firstly we should establish the trademark indirect infringement liability form.The concept of indirect infringement on trademarks originated in the United States,the case of Inwood established the standard of indirect infringement of trademarks.China's current law on the provisions of indirect infringement of trademark is article fifty-seventh,item sixth in the trademark law.We can conclude the constituent elements of indirect infringement of trademark as follows: there is trademark infringement directly;help the infringement objectively;Subjective fault.In the judicial practice,the difficulty is the confirmation of subjective fault of the search engines.So it is necessary to make sure that we must clarify search engine's attention obligation before the confirmation of Subjective fault.Keyword advertising bidding ranking service belongs to commercial ads,the search engine,as an advertising publisher,should have an obligation to review the content of the advertisement accordingly.Nevertheless,due to the particularity of search engine technology,we shouldn't require the search engine to undertake a rigorous review of obligations,but to to give appropriate review obligations based on their ability.Specifically,marking the boundary between the search engine and the advertiser,the keyword advertising service should be divided into two stages,and each of them has different obligations.When confirming the subjective fault of the search engine operator,the court can make decision according to the duty of attention and different stages.When there is duty for operators to pay attention,the court judges according to whether the obligation has been performed;When there is no duty for operators to pay attention,the court judges according to the Red Flag Standard and the inform and delete rules.The search engine operators that constitute indirect trademark infringement shall bear joint liability for tort with the advertisers,and the joint liability shall be regarded as the unreal joint liability.