Determination Of Trademark Infringement And Unfair Competition Concerning Backstage Keyword Advertisement

Keyword advertisement has become a typical way of promoting on the internet,but there are also increasing disputes over trademark infringement and unfair competition.In the judicial practice and academic circles,there is still controversy about the issue of infringement identification of keyword advertisements,especially for backstage keyword advertisement which is only set others trademarks as paid search keywords,but the promotion content does not display trademarks.For this issue,There is still no consensus on whether it constitutes infringement.Whether the implicit use of trademarks in backstage keyword advertisement is trademark use and whether trademark infringement should be based on trademark use are controversial.whether this behavior constitutes unfair competition and its standards applicable to the law are argumentative.Thus,different understandings lead to different judicial trial results.The core function of the trademark is the recognition function,and the protection of the trademark right should be bounded by its recognition function.Therefore,trademark use should be recognized by consumers and can play a role in distinguishing the source of goods or services.Trademark infringement should be based on trademark use.Front stage keyword advertisements are classified as trademark use and will constitute trademark infringement when they meet other constituent elements.The implicit use of trademarks in backstage keyword advertisement does not belong to trademark use and generally does not constitute trademark infringement.After weighing the interests of the three parties of the trademark owner,competitors and consumers,as well as considering and demonstrating from the perspective of jurisprudence,it is a reasonable choice to identify this behavior as unfair competition.After studying the judicial practice experience,my paper puts forward specific identification ideas,Including judging whether objective behavior is misleading,the popularity of trademarks,whether there is competition between the advertiser and the trademark owner,whether there is reasonable use of trademarks,whether the advertiser's use of other's trademark pays the corresponding price,and whether has the damage result.When the implicit use of other's trademark meet the above six points,that it is unfair competition.The legal nature of keyword advertisement should be commercial advertisement.After determining that the implicit use of trademarks is unfair competition,it can be regulated through the Anti-Unfair Competition Law and the Advertising Law.In the judiciary,we should also pay attention to distinguishing the infringement problem of dealing with front stage keyword advertisement and backstage keyword advertisement.Thus,it is suggested to expand the scope of application of clause six and eight in the Anti-Unfair Competition Law by judicial interpretation or implementation regulations,so it can put the implicit use of other's trademarks and misleading behaviors into this regulatory scope.In addition,it may be added to the provisions of clause fifty-nine of the Advertising Law,For violations of clause four and thirty-one of the Advertising Law and which are unfair competition,they shall be dealt with by the Anti-Unfair Competition Law.The improvement of relevant provisions can promote the clarification of the applicable standards of law and facilitate the construction of a complete legal liability system.