Analysis On The Infringement Of The Bidding Ranking Of Trademark Keyword Search Service

At present,there have been many infringement cases of trademark keyword bidding ranking service in China's judicial practice,but different courts have different judgments on such cases.For the legal nature of trademark keyword ranking service,whether this service will cause confusion among the relevant public,whether the act of bidders setting other trademarks as keywords constitutes trademark infringement or unfair competition,and what kind of duty of care should search engine service providers have,the courts have not formed a unified view.The case of competitive ranking service in judicial practice at home and abroad is studied and analyzed.It is found that although the trademark keyword competitive ranking service is provided by search engine service providers,it is different from general natural search.It is selected by bidders and changed the order of search results by search engine service providers.Although it has the effect of propaganda and promotion,its advertising content is different from that of general natural search engine service providers.On the third-party website linked,it is not on the page of search results,so it is not an advertisement.Bidding ranking service based on trademark keywords can bring win-win situation to search engine service providers and enterprises,which should belong to Internet value-added services.According to whether network users can perceive the trademark keywords set by bidders,trademark keyword bidding ranking service can be divided into dominant bidding ranking service and implicit bidding ranking service.The dominant bidding ranking service can also be divided into two situations,that is,to display other people's trademarks in the links of bidders and the websites of products or services provided by bidders,and to set up chains only in keywords.The use of a trademark does not occur on the bidder's own website.It is found that the use of other trademarks by bidders in all trademark keyword bidding ranking services constitutes the use of trademarks.The first behavior of explicit bidding ranking service will cause confusion.The second situation of explicit bidding ranking service may constitute confusion or unfair competition.The implicit bidding ranking service will not cause confusion and may not constitute unfair competition or infringement.As bidding ranking service belongs to Internet value-added service,search engine service providers should fulfill a certain degree of duty of care.In the bidding ranking service of trademark keywords,search engine service providers need to pay attention to the keywords selected by bidders to a certain extent.If they are famous trademarks,search engine service providers should require bidders to provide certificates of registered trademark rights,business licenses and other relevant qualifications.When bidders have direct infringement,search engine service providers objectively provide substantive help to them and subjectively make mistakes,then search engine service providers constitute indirect infringement.