| In the Internet environment,with the rapid development of search engines and big data technology,keyword advertising emerged as the times require,and quickly became a popular way of information dissemination and retrieval.Yet since 2008,keyword ads have been mired in trademark infringement disputes,where buyers of keyword advertisements utilize other people’s trademarks as keywords.The trademark owner either litigates both the keyword buyer and the search engine service provider as a defendant or either of them as a defendant.According to the theory of indirect tort,it is necessary to assume that the existence of direct infringement by keyword buyers is the premise of the infringement of search engine service providers.Through combing the judicial practice cases of our country in recent years,some courts have a lot of ambiguity and remarkable difference on the basis and conclusion of the trademark infringement of keyword advertisement buyers.Generally speaking,the determination of trademark infringement should satisfy two requirements: First,constitute trademark(commercial)use;Second,there is the possibility of confusion.Because of the particularity and novelty of the keyword advertising cases,these two conditions encounter obstacles in the concrete application.In addition,in the “Trademark Law” of China there is no specific regulation on keyword advertising related behaviors,about the court’s judgement on the nature of keyword advertising buyers’ behavior of using others’ trademark,that is,whether it constitutes trademark commercial use,as well as whether there is confusion,there is a greater controversy.This paper is divided into four parts and elaborated,according to the basic thinking of “Raising Problem-Analysis-Problem Shooting”.The first part is the introduction of the definition and basic operation mode of keyword advertising.The detailed analysis of the meaning,nature,characteristics and the specific operation process of the keyword advertisement,lays the foundation for the research on the behavior and trademark infringement of the keyword buyers.The second part is the dilemma of our trademark law to regulate the use of others’ trademarks by keyword buyers.On the basis of introducing the basic theory of keyword advertising,especially the operation mode,the author sorts out the infringing types of keyword advertisement buyers,and further generalizes the behaviors of “explicit use” and “implicit use”.Combined with the different types of infringement,this paper expounds the dispute points of whether the use of other people’s trademark by the buyer of keyword advertisement constitutes the trademark infringement in theory and practice.In view of the provisions of China’s current law,the article puts forward the defect of “Trademark Law” to regulate the use of others’ trademarks by keyword buyers,mainly because of the unclear connotation of “Trademark Use” and the lack of theoretical foundation for judging the possibility of confusion in keyword advertising cases.The provisions of Article 48 of “Trademark Law” on the “Use Of Trademark” can no longer cover the emergence of new use behaviors under Internet environment,and the function of trademarks being limited to playing an identification role cannot hardly apply for determining keyword advertising cases.The behaviors of the advertisement buyers may lead to the confusion of consumers ahead of schedule,that is,the confusion of initial interest,and the judgment of the possibility of confusion has not been introduced into the trademark law of our country.It ends up with a difficult problem to identify whether or not keyword buyers’ behavior of utilizing other people’s trademarks causes confusion.The third part,from the perspective of extraterritorial research and from the legislative and judicial aspects,focuses on in the thinking and experience of the United States and European Union countries in resolving keyword advertising trademark disputes.Keyword advertising cases first appeared in Europe and the United States.This paper analyzes the development process of the standards of trademark use established by the United States and the European Union,as well as the emergence and application of the Initial Interest Confusion Theory in the United States,in an attempt to provide a useful reference for our country to improve the trademark infringement determination of keyword advertising buyers.The last part expounds the suggestions of perfecting judgement of the trademark infringement of keyword buyers in China.In view of the dilemma mentioned in the second part,the author puts forward a reasonable definition of trademark use,distinguishes the implications between trademark commercial use in infringement and rights enjoyment in trademark use,and extends the judgment standard of trademark commercial use in infringement.In addition,combined with the reality of our country,on the basis of further analysis of the rationality of introducing the theory of Initial Interest Confusion,this paper puts forward six restrictions on the application of the theory in the network environment such as keyword advertising etc. |
