The Analysis And Identification Of The Search Engine's Indirect Liability

In the cases of trademark keyword advertisements,the search engines should bear the indirect liability for they are a source of danger and they hold and manage all the information relating to the keywords.Besides that,undertaking the indirect liability will not bring a heavy burden on them,because their duty of care is an active and procedural obligation.Further,In the framework of search engines' secondary tort liability,we should analyze the direct tort liability and the indirect tort liability together as the analysis of advertisers' direct tort liability is the premise and basis.Under the above mode,the analysis of the indirect liability should be divided into two parts:the explicit use of trademarks is the direct infringement of trademark rights and the recessive use of trademarks should be prudently regulated by Article Two of Anti-unfair Competition Law.However,whether the aforesaid direct infringement is a direct infringement under the Trademark Law or a direct infringement under the Anti-unfair Competition Law,the search engines shall assume the joint and several liability,but as the Anti-unfair Competition Law only prudently applied in the cases of recessive use of trademarks,the search engines should devote its efforts to reviewing and paying attention to explicit use of trademarks,like the page titles,links,and content where the keywords used.