Research On The Implicit Use Of Other People’s Trademarks In Search Promotion

Keyword promotion is a kind of service mode of network promotion launched by search engine vendors.While this network-marketing model has succeeded in commerce,it has also triggered a series of legal issues.In particular,the promotion of the owner has set other people’s registered trademarks and company names as search keywords behavior may constitute trademark infringement or unfair competition.Among them,the dominant use behavior of other people’s trademarks as search keywords has reached a consensus between the theoretical community and the judicial practice community.Therefore,for the implicit use of keywords,the court has not formed a consistent judgment.It is so controversial that this article will discuss the definition of the implicit use behavior of key words.For the implicit use of other people’s trademarks as search keywords,this article does not consider that it constitutes trademark infringement,but it belongs to the category of unfair competition.Therefore,the “Anti-Unfair Competition Law” should be used to regulate such acts.The structure of this article is as follows:The introductory part introduces the background of the use of trademark infringement disputes by others in search promotion,as well as the issue of the nature of the infringement,and summarizes the relevant judicial status at home and abroad.The first part puts forward the issue discussed in this paper with the "Mrs.King" case firstly.That means whether the conduct of implicit use of another’s trademark in search promotion constitutes trademark infringement or unfair competition.The second part is mainly about the definition of the implicit use of other people’s trademarks in search promotion.The basic principles of keyword promotion service are introduced.The keyword promotion service can be divided into explicit use behavior and implicit use behavior according to whether keywords appear in the promotion content.Among them,the keywords set in the search promotion are trademarks of others,which are also divided into explicit use behaviors and implicit use behaviors.This article discusses the implicit use behaviors of setting other people’s trademarks as search keywords.The third part mainly summarizes and analyzes the status quo of judicial practice in the use of foreign trademarks in China and abroad.From the point of view of whether the behavior constitutes trademark infringement or whether it constitutes unfair competition,targeted cases are selected.By sorting out the focus of disputes in these cases and the judgment of the court,it is necessary to clarify the legal nature of implicitly using other people’s trademarks.The fourth part mainly analyzes whether the hidden use of keywords constitutes trademark infringement.The use of trademark and the possibility of confusion are the two conditions for identifying trademark infringement.The use of the trademark in the implicit use of keywords is not used to identify the source of goods or services,and is not a trademark use.Even if there is confusion,it does not constitute a trademark.Infringement should not apply to trademark and regulatory systems.The fifth part mainly analyzes whether the implicit use of keywords is unfair competition.Although the implicit use of keywords does not constitute trademark infringement,this behavior does damage the legitimate interests of the trademark right holders,who can seek protection against unfair competition laws.According to the analysis of the standards for the determination of unfair competition behavior,the promotion of the covert use of the owner’s trademark as a key word violates the principles of good faith and recognized business ethics,constitutes unfair competition.It should apply the unfair competition regulation system.However,the current Anti-Unfair Competition Law does not contain any specific provisions on this behavior.Therefore,the general provisions of Article 2 of the Act can be applied.