The Legal Regulation Of The Use Of Others' Trademarks In Bidding Ranking

In today's information age,with the popularity of the Internet,convenient use,fast search engine search information has become an important way for people to obtain information.But the effective information that can appear in the user's vision is limited after all,in order to allow operators to compete in a limited space,search engine service providers launched a competitive ranking business.Bidding ranking,a new type of advertising marketing method,has the advan,tages of strong pertinence,clear target audience and quick effect,and is favored by many small and medium-sized enterprises in urgent need of promotion.Bidding ranking in China is still in its infancy,lacking of strong administrative supervision and certain industry self-discipline.In recent years,in order to pursue the advertising effect of"immediate effect",many operators use the trademark of well-known brands or competitors as the keywords of bidding ranking,which leads to a series of trademark infringement and unfair competition disputes.Due to the lag and inconsiderate ductility of legislation,there are no specific regulations on the use of other people's trademarks as keywords in bidding raning.In judicial practice,the court has to judge this new type of case,and the referee can onl.y judge and decide the value according to the existing rules of principle and the standard of judgment.There are obvious differences in the use of trademark,the possibility of confusion and the application of "general clause" in Anti-unfair Competition Law in different courts.In such a realistic background,we should perfect the legal regulation ways of using other people's trademarks in the bidding ranking,unify the judging standards.It is of great practical significance and urgent need,not only the health,y development of the bidding ranking business under the Internet economy,but also the protection of the legal rights and interests of trademark owners and consumers.Therefore,the author specifically studies the l,egal regulation of the use of,other people's trademarks in bidding rankings.After combing and pondering over the legal regulation of the use of other people's trademarks in the domestic and foreign bidding rankings,this paper starts to study from the following four aspects:The first part:defines the related concepts of the use of other people's trademark behavior in the bidding ranking.After analyzing the definition,operation mechanism and advertising nature of bidding ranking,this paper classifies the use of others' trademark in bidding ranking into two types:explicit use and implicit use,based on whether consumers can see the trademarks purchased by bidders from the outside,in order to carry out detailed research.Besides,from the aspects of the rights of trademark owners,the interests of consumers and the maintenance of the order of market competition,the necessity of regulating the use of other people's trademarks in bidding ranking in China is explained.The second part:analyze the problems existing in the use of other people's trademarks in the regulation of bidding ranking in China.The author summarizes the relevant cases collected by the author of our country,through the analysis of typical cases,summarizes the differences in judicial practice,and further discusses the crux of the problem mainly lies in:Trademark Law"use of Trademark" judgment standards are uncertain,The criteria for the identification of the possibilit,yr of confusion are vague,the application of the "general clause" in Anti-unfair Competition Law is limited,and the limits of the regulatory path are not clear.The third part:the author makes a comparative study on the legal regulation of the use of other people's trademarks in the bidding ranking,respectively from the United States and the European Union on the determination of use of Trademark",in the initial interest confusion.'theory of the United States and the embodiment of the "general clause" of the German anti-unfair competition law,the enlightenment of the extraterritorial regulation experience to China is summarized.The fourth part:aiming at the two laws of Trademark Law and Anti-unfair Competition Law of our country,this paper puts forward some perfect measures and countermeasures on the application of laws and system defects in regulating the use of other people's trademarks in bidding ranking.It is suggested that the "implicit use",of other people's trademark as the key word in the bidding ranking should be regarded as "use of Trademark".Because "explicit use"includes "implicit use behavior,"explicit use'" must also constitute "use of Trademark",Secondly,it demonstrates the necessity and feasibility of bringing "initial interest confusion"into the scope of trademark law,and puts forward that the criterion of identifying the possibility of confusion should be extended to "pre-sale".Thirdly,if the "implicit use" behavior ils not enough to cause confusion,the second "'general clause" of the Anti-unfair Competition Law should be applied to regulate it.At the same time,it is suggested that the application of"general clause" should be concretized by drawing lessons from the judicial experience of Germany.Finally,on the choice of regulatory path,it,is suggested that "explicit use" of other people's trademarks as the key word of bidding ranking should be the first choice of "Trademark'Law'" to regulate,while "implicit use" of behavior should be regulated by "Anti-unfair Competition Law".To sum up,this paper tries to set out from the point of view that the advertiser invades other people's trademark rights and unfair competition,Focusing on the "implicit use'l" behavior of trademark in bidding ranking,which is controversial in both theoretical and practical circles at present.This paper analyzes the problems and system defects in the application of the Trademark Law and the Anti-unfair Competition Law,draws lessons from the beneficial experiences of other countries and regions,and puts forward corresponding countermeasures and suggestions in light of the characterist,ics of the legal norms of our country.In order to improve the use of other people's trademark in the bidding ranking legal regulation,unified judicial standards to provide a certain reference.