| With the rapid development of Internet economy,the new competition mode represented by keyword search and advertising service has been growing rapidly in recent years.According to the current Trademark Law and the Anti-Unfair Competition Law,there is no specific clause that can apply to keyword search and advertising services.Limited to the different understanding towards present law,this business has also caused many legal disputes with the rapid development of this service.It has also aroused extensive discussions in academic and judicial professions.This paper subjects to the Nature of advertisers’ behaviors in keyword search advertising and subdivides the Internet keyword search advertising services into two types: explicit use and implicit use.Whether or not it is justified or not.From the perspective of the Trademark Law and Anti-Unfair Competition Law,the paper analyzes the legality and legitimacy of advertisers’ behaviors.Chapter One is mainly about the empirical research of the current situation in keyword search advertising judgments,and analyzes the existing problems.In this chapter,this paper first introduces two types of keyword search advertising services(explicit use and implicit use)and their characteristics.Then,it makes an arrangement and empirical research of the keyword search advertising judgments under the Trademark Law and Anti-Unfair Competition Law.It is found that in the cases of trademark infringements,the courts have different opinions towards whether the behaviors involved constitute a trademark infringement or constitute an unfair competition.Chapter Two mainly discusses and analyzes the regulation of keyword search advertising services under the Trademark Law.This chapter clarifies the specific elements of the keyword search advertising service that constitutes “trademark infringement”.The analysis of trademark infringement on keyword search advertising service is carried out,and it is considered that the implicit use of keyword search advertising does not constitute trademark use,so it does not constitute trademark infringement.So,it remains to be discussed in the next Chapter of Anti-Unfair Competition field.The explicit use of keyword search advertising can apply to the theory of initial interest confusion,and identify the trademark infringement when the advertisers only use other people’s trademarks involved in their titles and brief introductions.Chapter Three mainly discusses and analyzes the regulation of keyword search advertising services under the Anti-Unfair Competition Law.This chapter tries to explore the applicable conditions in the second Clause of Anti-Unfair Competition Law on the Internet.In order to identify the certain standards of the unfair competition on keyword search advertising service and find out that the implicit use in keyword search advertising service does not constitute an unfair competition in general.The Last Chapter is the conclusion.After discussing and sorting out the whole passage,the implicit use in keyword search advertising service does not constitute neither trademark infringement nor unfair competition.It is a proper market behavior under business ethics.And the explicit use in keyword search advertising service constitute trademark infringement under the theory of initial interest confusion,so it will not be regulated by the Anti-Unfair Law. |
